All Change? What Could Happen to Accessibility Law in the UK after Brexit

There’s an old Chinese curse which roughly translates as “may you live in interesting times”: a warning that you are about to live through the sort of difficult experiences which allegedly build character. Looking at what might lie ahead for web accessibility law in 2019, it seems that there are some interesting times ahead. They revolve around the uncertain future of accessibility law, and disability rights in general, after the UK leaves the European Union in March.

Sailing off the edge of the map

The notion of Brexit must seem bewildering to those outside the UK. The idea of a country voluntarily leaving an international political coalition, in peacetime, and withdrawing from the framework of policies, regulations, and conventions which created those bonds was once thought implausible. The reality, now that it is here, is even harder to deal with. The mantra of “taking back control” was sold as an end without a means: no one, it seems, thought about what happens once control is taken back. As the risks of a “hard Brexit” — a scorched earth policy — or a “no deal” scenario draw closer by the week, we risk losing the best of what membership in Europe gave us with nothing to replace it. Accessibility law is very much in that mix.

For those of us in the UK, our imminent withdrawal from the European Union creates a range of issues that we still have not fully grasped over two years into the process. After all, most of UK web accessibility law, both as a function of human rights and as a function of coding requirements, comes from European law. The European-derived framework on accessibility includes:

• The EU Charter of Fundamental Rights, a human rights law which bans discrimination against people with disabilities and requires them to be fully integrated into society;
• The Equality Act 2010, a human rights law which implements the four EU Equal Treatment Directives;
• The Human Rights Act 1998, which incorporates the European Convention on Human Rights;
• The Public Sector Accessibility Directive 2018, a web accessibility law which took effect in September and pertains to public sector web sites and apps, which implements Directive 2016/2102; and finally,
• The proposed European Accessibility Act, a draft regulation addressing the accessibility standards of products and services, which may or may not be finalised in time to enter the UK legislative process before Brexit day.

There are, of course, many other disability rights issues at play in Brexit, ranging from laws on mandatory awareness training for bus drivers to the rights of freedom of movement for personal assistants employed from EU countries, but for sanity’s sake, we will focus on the issues most pertinent to web development.

We know this much is true. On the day the UK leaves the European Union, all of the existing European legislation which currently shapes life in the UK will be converted to domestic legislation, providing the starting point for life outside Europe. These regulations will stay on the books, as the law of the land, until policymakers decide otherwise.

What happens after that is, as the curse goes, interesting times. Accessibility laws could be left as they are, replaced by domestic versions that are considered better than European law, or deleted altogether with no replacement.

One would like to think that it is unlikely that the accessibility laws created by European legislation would be thrown out with the bathwater. But it is a scenario we do need to think about.

Letting the door hit us on the way out

There are worrying indications that this is already happening with the European Accessibility Act, which has been provisionally approved in Brussels. The Act would create single market-wide accessibility standards for products and services, ranging from televisions to ATMs to ticket machines to e-commerce, for the benefit of the estimated 80 million Europeans with disabilities as well as over 190 million older people.

The Act has already faced two roadblocks within the European legislative process: the sheer length of time it has taken, having recently entered its fourth year of negotiations, and the consequences of being watered down by a thousand exemptions, including derogations for microenterprises and small businesses.

The Act now faces a third problem in the form of a pro-Brexit UK government seemingly determined to spite anything that smacks of Europe for the sake of it. While it is still a participant in the lawmaking process in Brussels, UK negotiators have advocated a weaker and substantially compromised version of the Act which would not, in their words, “lead to increased costs for [British] businesses (PDF, 178KB).” The benefits a stronger Act would deliver for Britain’s disabled and elderly – who, ironically, tended to vote in favour of Brexit – is seemingly less important than who is making the Act.

To complicate the matter further, timing is an issue. The Act is a Directive, which means that it has flexibility in its transposition by member states. That traditionally takes time and deliberation. If the Act is finalised and passed in Europe before March, there is a possibility it could be rushed through for domestic enactment before Brexit day with little time for consideration. However, if the Act is not finalised and passed before March, the UK would have the option of not adopting it at all.

Pragmatism must prevail. As I told the All-Party Parliamentary Group on Assistive Technology in January, no government wants to be responsible for creating a situation where Brexit means that the products and services available to British users have lower standards than those available to European users. No government, likewise, should seek to create a situation where British manufacturers must continue to design products to high European standards for European customers, while products for the domestic market gain a reputation as inferior. Nor should anyone find it aspirational to position Britain as an island off the coast of Europe where disabled people must chance their luck with the products and services they use, while their friends on the continent would be able to take accessibility standards for granted.

It is not for nothing that the Guardian has cited the EAA as an example of “a policy area where Westminster once led the way, but now is at risk of slipping back”; whether disability rights groups and civic associations have the ability to turn that around in the little time we have left to do it remains to be seen.

Keep code and carry on

We turn now to practical web accessibility. It is worth noting that 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.

In my view, the existing European-derived regulations which pertain to web accessibility requirements are at little risk. The main point of contention for those laws, at this stage, is how strictly implementation, monitoring, and enforcement will be carried out. Carrots need sticks.

The recently enacted public-sector accessibility directive, for example, was drafted on the assumption that member states would report back to the European Commission every three years. The UK will be out of Europe by then, so enforcement has been handed instead to the Equality and Human Rights Commission. However, support for the compliance process is being led by the Government Digital Service team, effectively splitting the job across two very different public bodies. There is much enthusiasm and support for the public sector accessibility directive now, but its long term success will be determined by how well GDS’s carrot works with the EHRC’s stick.

From my perspective, I am more concerned about Brexit’s risk to the European regulations pertaining to nondiscrimination and civil rights, and the impact this could have on people with disabilities and their accessibility rights. The EU Charter of Fundamental Rights has been specifically excluded from the body of law which will be converted to domestic law on Brexit day. This is because the Charter is enforceable by the Court of Justice of the European Union – a body which pro-Brexit camps held particularly responsible for perceived interference in domestic policy. The Human Rights Act is equally vulnerable.

What remains is the Equality Act 2010 – the one which has been held to require web accessibility even though not implicitly mentioned – and the Act’s ability to carry a weight previously shared with Europe (PDF, 362KB) will surely be tested across many areas in the years to come.

Brexit, as we are so often told, will be an opportunity to create new domestic policies and initiatives outside the European system. However, with precisely none of the disability issues raised by existing law being near resolution yet, no politicians or advocacy groups have put forward any ideas on what those innovations might be. Any “opportunities,” in other words, are many years away.

The safest way to deal with this uncertainty, of course, is to continue to develop to WCAG 2.0, and to actively engage people with disabilities in testing and feedback.

All is not lost

If accessibility laws were to become threatened in a post-Brexit Britain, the UK has a strong and vocal disability rights sector ready to take up the challenge. Groups such as Disability Rights UK have laid out practical steps for maintaining the best possible standard of life for persons with disabilities after Brexit, and their vision has three common-sense objectives:

1. We should seek to preserve all existing disability rights as is regardless of their source;
2. We should maintain all existing disability rights after Brexit, and not water them down or throw them out with the bathwater;
3. If we are to leave Europe, we should innovate new, comprehensive, and inclusive forms of disability and accessibility support outside its constraints.

These objectives — preserve, don’t regress, and progress — form an excellent framework for any advocacy you may wish to engage in during the transition process.

Accessibility rights have friends within government as well: the UK Government Digital Service team are renown for their work online; the All-Party Parliamentary Group for Disability includes MPs with a range of abilities; and the All-Party Parliamentary Group on Assistive Technology does an outstanding job of advocating for digital accessibility.

Could the solution lie in the fine print? One clever trick which has been suggested to ensure future alignment with EU legislation would be to require accessibility and equality in future trade arrangements: a means of forcing the UK to continue to operate at European standards even while out of it. It remains to be seen who is brave enough to try it.

All of this, of course, assumes that Britain actually does leave the European Union and that the current government remains intact until then; both scenarios, seemingly, change by the hour.

May you live in interesting times.