Equality Bill Makes Britain's Web Accessibility Law Harder to Access

 

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(Referenced from other sources)
    Equality Bill Makes Britain’s Web Accessibility Law Harder to Access

 

By Struan Robertson,
OUT-LAW News, Mar. 19, 2010

 

OPINION: The UK’s law on web accessibility is being re-written in an
apparent attempt to make it impenetrable. But even though algebra has
replaced plain English, the duty to make information accessible to disabled
people survives, thanks to a blind peer.

 

The Equality Bill is nearing the end of its Parliamentary journey. It is
likely to be in force in October, at which time it will replace the
Disability Discrimination Act (DDA) in England, Scotland and Wales.

 

The Government promised that the new law would be easy to read and
understand. Unfortunately it isn’t.

 

The DDA was passed in 1995, the year that Amazon.com and eBay were launched.
The web was young and nobody knew it would grow so fast. The DDA didn’t
mention the web specifically, but it did include “access to and use of
information services” among its examples of services that had to be
accessible to people with disabilities. This meant that websites should be
accessible.

 

All of our anti-discrimination laws are now being replaced by the Equality
Bill. Given the web’s ubiquity in 2010, it may seem odd that it too makes no
mention of the web. But of itself, this is no bad thing. Laws should be
technology-neutral whenever possible. My biggest complaint with the Bill is
that it’s just too difficult to follow.

 

When Harriet Harman introduced the Bill (40-page PDF) she said: “It will be
written in plain English, so that those who benefit from the law, and those
who need to comply with it, can see the wood for the trees.”

 

Clearly something went wrong. Here’s why you have to build accessible
websites, in the language of the Equality Bill: “A person (A) discriminates
against another (B) if A applies to B a provision, criterion or practice
which is discriminatory in relation to a relevant protected characteristic
of B’s.”

 

It also says that you mustn’t instruct your developer to build an
inaccessible site. Or at least, it says that once you’ve worked out what
this means: “A person (A) must not instruct another (B) to do in relation to
a third person (C) anything which contravenes Part 3, 4, 5, 6 or 7 or
section 107(1) or (2) or 111(1) (a basic contravention)”.

 

This construction is a consequence of forcing one set of rules on a diverse
range of ‘protected characteristics’, namely disability, age, gender, race,
religion or belief, sex and sexual orientation. This approach saves paper
but it risks confusion and ambiguity, which is good news for lawyers only.

 

A casualty of the one-size-fits-all approach to legislation was the DDA’s
explicit demand for information to be made accessible. The Equality Bill’s
generic language at first made no such explicit demand, though it did
require adjustments to any “provision, criterion or practice” that put a
disabled person at “a substantial disadvantage”. It also made explicit
reference to the need to remove physical barriers.

 

As Lord Low of Dalston observed in the House of Lords, we live in an
information age. “This is as important to the inclusion of those with print
disabilities as the removal of the barriers created by physical features is
to those with physical disabilities.” he said.

 

Lord Low is blind, and therefore ‘print disabled’ himself. He also serves as
RNIB’s Vice President. This month he succeeded in persuading the Government
to change the Bill.

 

The Equality Bill now provides that where a service “relates to the
provision of information,” the steps which it is reasonable for a provider
to have to take “include steps for ensuring that in the circumstances
concerned the information is provided in an accessible format.”

 

This is an important change. As Lord Low said, “without it the Bill would
represent a regression from what we have at the moment”.

 

Accessibility is neglected on most websites, despite the DDA’s long-standing
obligations. Lord Low thinks that may change through enforcement. He told
the House that his amendment “will give the enforcement authorities – the
EHRC [Equalities and Human Rights Commission] – something more substantial
to go on.”

 

The EHRC, a statutory body, has prepared a draft Code of Practice based on a
version of the Bill before the amendment. It makes clear that websites need
to be accessible. It gives the example of an organisation’s website on which
users cannot change the font size or use text-to-speech software. “As well
as giving rise to a duty to make a reasonable adjustment to their website,
their practice will be unlawful (unless they can justify it),” says that
draft Code.

 

Courts will be required to take that guidance into account in relevant
proceedings, as they are required to take its current guidance into account.
But as Lord Low rightly points out, an explicit reference in the legislation
will be more effective in driving compliance. “I entertain a measure of
scepticism about the efficacy of guidance,” he told the House.

 

Guidance from the EHRC’s predecessor, the Disability Rights Commission, put
the DDA’s duty on website operators beyond doubt. But every time I’ve
explained the DDA, I’ve quoted the legislation first, the guidance second,
because everyone knows that legislation is more important. The DDA is
quotable: short, clear statements that don’t refer to persons A, B or C.
Like a politician, a law with neither clarity nor sound-bites will struggle
to resonate.

 

It’s great that Lord Low’s amendment has been approved. It’s the sound-bite
highlight, but I wish the rest of the Bill was as clear. It’s too late for
that now. The Equalities Bill has its third and final reading in the House
of Lords on Tuesday, after which both Houses will consider any last-minute
tweaks before it gets passed as an Act. We will get a law that is confusing.
That confusion will be its weakness.

 

Struan is co-writing BS 8878, the first British Standard to address web
accessibility. He will be ranting about other features of the Equality Bill
on OUT-LAW in the coming weeks. You can also read his mini-rants at
Twitter.com/struan99.

 

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