House of Commons - Thirty-second Report of Session 2012-13

Thirty-second Report of Session 2012-13 - European Scrutiny Committee Contents

1 Accessibility of public sector bodies' websites

(34512)
17344/12
+ ADDs 1-2 COM(12) 721
Draft Directive on the accessibility of public sector bodies'
websites

Legal base Article 114 TFEU; QMV; ordinary legislative procedure

Document originated 5 December 2012

Deposited in Parliament 7 December 2012

Department Cabinet Office

Basis of consideration EM of 30 January 2013 and Minister's letter of 5 February 2013

Previous Committee Report None

Discussion in Council To be determined

Committee's assessment Politically important

Committee's decision Not cleared; further information requested

Background

1.1 The Commission says that the proposed new Directive:

— is aimed at the approximation of the laws, regulations and administrative provisions of the Member States on the accessibility of websites of public sector bodies; and

— supports Member States to achieve their national commitments regarding web-accessibility as well as their commitment to the United Nations Convention on the Rights of Persons with Disabilities regarding websites of public sector bodies.

1.2 The Commission also says that "Web-accessibility" refers to principles and techniques to be observed when constructing websites, in order to render the content of these websites accessible to all users, in particular those with disabilities.

1.3 The Commission notes that, according to the United Nations Convention on the Rights of Persons with Disabilities,[1] persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.

1.4 The UN fact sheet, "The Convention in Brief",[2] explains, inter alia, that:

"On the fundamental issue of accessibility (Article 9), the Convention requires countries to identify and eliminate obstacles and barriers and ensure that persons with disabilities can access their environment, transportation, public facilities and services, and information and communications technologies"; and

"Countries are to promote access to information by providing information intended for the general public in accessible formats and technologies, by facilitating the use of Braille, sign language and other forms of communication and by encouraging the media and Internet providers to make on-line information available in accessible formats (Article 21)".

1.5 The Commission says that:

— in 2009 the EU website-developer market consisted of some 175,000, employing 1 million people and with a turnover of 144 billion;

— the European market for web accessibility-related products and services is estimated at €2 billion, and could grow significantly, as less than 10% of websites are accessible; and

— the number of citizens with functional limitations or disabilities (15% of the EU working age population or 80 million people) may increase significantly as the Union population ages.

1.6 The Commission describes web-accessibility as being of great importance for public sector bodies, to extend their reach and to fulfil their public responsibilities. It notes that the number of websites providing e-government services (about 380,500) and public sector websites (over 761,000) grows rapidly; and that most Member States have already either enacted legislation, or have taken other measures on web-accessibility. However, the Commission says, significant differences exist between these laws and measures.

1.7 These non-harmonised national approaches to web-accessibility:

"create barriers in the Internal Market. Suppliers that operate cross border face additional production costs. Competition, competitiveness and economic growth are hampered because enterprises, SMEs in particular, lack the knowledge and capacity to cope with all the specifications and procedures."

1.8 National authorities and business actors face uncertainties concerning the selection of "web-accessibility" specifications for potential cross-border services, and concerning the most appropriate policy framework for web-accessibility. Harmonisation of national measures for the public sector at EU level is accordingly being proposed "as a necessary condition to put an end to this fragmentation and lack of confidence in the web-accessibility market."

1.9 This Directive:

"addresses public sector bodies' websites, because they provide information and services that are essential for citizens, and public expenditure in itself can create already a secure and sizable market for web-developers."

1.10 The Commission says that the compliance costs for administrations have been assessed, and that the analysis concluded "that benefits outweigh these costs."

1.11 The Commission asserts that:

— "As web-developers are encouraged to achieve economies of scale, this measure will contribute to create a cascade of 'spill-overs', beginning with all other public sector websites";

— Harmonisation "will lead to better market conditions, more jobs, cheaper web-accessibility and more accessible websites: a triple win for governments, businesses, and citizens."[3]

1.12 The Commission says that its proposal will comply with Article 9 of the United Nations Convention on the Rights of Persons with Disabilities; will ensure the effective use of the harmonised standard for web-accessibility that should be built upon the outcome of Commission mandate M/376;[4] and limited to website-based online services provided by public sector bodies.

1.13 It is also "in synergy" with the European Accessibility Act (EAA),[5] which is currently in preparation and designed to address accessibility of goods and services, including ICT. The Commission says that this EAA, subject to the outcome of an ongoing impact assessment, will, by focusing on the private sector, facilitate the realisation of the full web-accessibility commitment of the Digital Agenda for Europe, by ensuring also the accessibility of private-sector websites from providers of basic services to citizens (websites that offer information and interaction, e.g. for contracting, booking, billing and payment, and for obtaining support.)

1.14 The Commission says that "Numerous public consultations and studies were carried out to identify problems and needs, addressing Member States, industry and civil-society", including the European Disability Forum and the European Blind Union, AGE and ANEC, and with software industries and the European Information and Communications Technology Industry Association.

1.15 The provisions of the Directive are:

Article 1 — Subject matter and scope: the Directive aims at approximating Member States' laws, regulations and administrative provisions on the accessibility of public sector bodies' websites, by defining harmonised requirements and laying down the technical provisions whereby Member States shall make accessible the content of certain types of websites of public sector bodies (styled "websites concerned"). The types of websites listed comprise information and services provided by public sector bodies that are essential for citizens' participation in the economy and society, and the enjoyment by EU citizens of their rights.[6]

Article 2 — Definitions: terms related to websites, standards and public entities are clarified. The terminology related to web content and user interface is said to be similar to that of W3C (World Wide Web Consortium) in the context of their Web Accessibility Initiative and in line with the draft standard from Mandate 376.

Article 3 — Requirements for web-accessibility: these are defined along two dimensions: user orientation; and market orientation and interoperability. Because technological and social change may affect these requirements, the Commission would be empowered to adopt delegated acts to specify, where appropriate, the further harmonised requirements necessary to ensure the accessibility of the websites concerned. These provisions are to be implemented by 31 December 2015.

Article 4 — Harmonised standards and presumption of conformity: the Directive is in line with Regulation (EU) No 1025/2012 on European Standardisation, which provides the legal basis for the Commission to request European standardisation organisations to develop harmonised standards to assist stakeholders in providing presumption of conformity. The reference to these standards would be published in the Official Journal of the European Union, indicating, as appropriate, the options that need to be observed when applying such standards. The Success Criteria and Requirements for Level AA conformance specified in the version 2.0 of the W3C Web Content Accessibility Guidelines (WCAG 2.0) are expected to be taken into account in the European standard resulting from Mandate 376 and subsequently in the harmonised standard that should be built upon the outcome of this work. These "technology neutral specifications" shall provide the basis for the requirements for web-accessibility.

Article 5 — European and international standards and presumption of conformity: in the absence of harmonised standards, the Directive provides a solution for presumption of conformity with the web-accessibility requirements to the websites concerned that meet European standards or parts thereof that have been determined by the Commission by delegated acts. Mandate 376 is preparing a European Standard that includes web-accessibility. In the absence of such a European standard, the Directive also provides a solution for presumption of conformity with the web-accessibility requirements to the websites concerned which meet the parts of the ISO/IEC 40500:2012 covering the Success Criteria and Conformance Requirements for Level AA conformance.

Article 6 — Additional measures are requested to contribute to awareness-raising, the establishment of cooperation arrangements and market growth. Member States are called upon to facilitate the extension of web-accessibility to public sector websites other than those concerned, as this will accelerate market growth and the achievement of web-accessibility for EU citizens.

Article 7 — Reporting: the accessibility of a website should be continuously monitored, in the light of regular updates of web content. Member States are requested to monitor the public sector bodies' websites concerned, using the methodology established by Commission in accordance with the procedure laid down in the Directive. The methodology will use procedures and technical assessment approaches from the harmonised standard, if available and adequate, and will be published in the Official Journal of the European Union. Member States would be free to arrange a suitable mechanism for these verifications, in assigning the responsible authorities. Member States shall annually report on the results of such monitoring. Reports should also include the possible extension of the list of types of websites concerned, as well as any additional measures pursuant to Article 6 that have been taken.

Article 8 — Exercise of delegation: the Directive provides for the exercise of delegated acts in line with Article 290 TFEU,[7] which allows the legislator to delegate to the Commission the power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of a legislative act. Such a procedure would be used in order to specify further the requirements for web-accessibility laid down in the Directive as indicated in Article 3 and to determine the European standard or parts thereof which provide presumption of conformity with the web-accessibility requirements for the websites concerned that meet them.

Article 9 — Committee: the Commission shall be assisted by a committee as described in Regulation (EU) No 182/2011.[8]

Article 10 - Transposition: the Directive sets out the date of entry into force of the laws, regulations and administrative provisions necessary to comply with this Directive by 30 June 2014 at the latest.

Article 11 — Review: a review shall be carried out of the application of this directive within three years from its entry into force.

The Government's view

1.16 In his Explanatory Memorandum of 30 January 2013,[9] the Minister at the Cabinet Office (Mr Francis Maude ) says that the Government has always tried to make its websites fully accessible and agrees that having an accepted standard across the EU will help website owners to ensure that they are meeting minimum levels of accessibility. What he describes as "development of the digital by default approach — including new digital services delivered via the single GOV.UK website" will, he says, help HMG to deliver accessible web services, noting that the approach being taken in the development of GOV.UK — "where all content is rigorously user tested before going live" — exceeds the standards set out by the Directive.

1.17 The Minister then continues his comments as follows (the Minister's underlining and footnotes):

"However, due to devolved ownership of website and web content in the UK, there will still be relevant content on websites other than the GOV.UK after 31 December 2015. Also the devolved ownership of public sector website content means that there is no single authority whereby HMG can monitor and report on compliance to the Directive.

"HMG has published various guidance on the accessibility of websites going back to May 2002 (when the Office of the E-Envoy (OEE) published guidance based on WCAG 1.0).[10] Updated guidance was published by OEE, along with a methodology for achieving compliance with WCAG 2.0[11]and the guidance was last updated by the Central Office of Information (COI) in June 2008.[12] Public sector websites in the UK should therefore be fully compliant with the WCAG 2.0 standard. The OEE closed in September 2004 and COI closed in March 2010; therefore, HMG will have to decide how to monitor and report compliance.

RECOMMENDATIONS ON SPECIFIC KEY ACTIONS

"HMG cannot assure compliance under Article 1 (Subject Matter and Scope) because of the devolved nature of public service administration and ownership of content on concerned websites. HMG is managing the migration of content to the GOV.UK website through regular meetings of Departmental Digital Leaders; these meetings provide a ready made mechanism for discussing issues relating to monitoring and compliance with the Directive by Government Departments. Decisions taken by Digital Leaders can be shared with the National Health Service, Local Government and the Devolved Administrations to help with compliance assurance and reporting.

"HMG can reasonably expect that either all public sector websites are fully compliant with the required standard or any non-compliance, detected by self-audit, will be corrected by 31 December 2015. However, website owners must ensure compliance with the two EU Directive defined dimensions for web-accessibility defined in Article 3 — these measures are:

a) "Consistent and adequate users' perception, operation, and understanding, including adaptability of content presentation and interaction, when necessary, providing an accessible electronic alternative; and

b) "Facilitates interoperability with a variety of user agents and assistive technologies at Union and international level.

"HMG notes that Article 4 (Harmonised Standards and Presumption of Conformity) and Article 5 (European and International Standards) deal with compliance of the Directive with EU regulations and existing International Standards. These articles provide the legal framework for the Directive and assure conformity with existing legislation. The purpose of the Directive is to remove existing gaps in legislation and EU standards. HMG agrees there are gaps in legislation and standards, and welcomes the move to harmonise.

"HMG notes that there are two separate elements to Article 6; the first facilitates awareness raising and cooperation to help develop market growth, which is welcomed by HMG. The second is aimed at extending the scope of the Directive beyond concerned website to all public sector websites. HMG notes that the EU is drafting the European Accessibility Act and this legislation will cover the accessibility of all goods and services. When the European Accessibility Act comes into force; HMG would expect that all UK public sector websites will need to comply with the legislation and — since in the UK public sector websites should be compliant with WCAG 2.0 — it may be possible to extend the Directive to ensure compliance by all public sector websites by 31 December 2015.

"HMG will need to clarify how it monitors and reports compliance with the Directive under Article 7. Member States are free to develop their own monitoring and reporting arrangements; although the Commission will establish the Methodology for Reporting the outcomes of Monitoring. Compliance with WCAG 2.0 is expected of public facing websites in the UK; so monitoring can be extended to all public sector websites under Article 6 (Additional Measures). However, under Article 3 (Requirements for Web Accessibility — see para 26 above),[13] the methodology will also include:

a) "Periodicity of the monitoring and the sampling of the websites concerned that shall be subject to monitoring;

b) "Description, at website level, of how compliance with the requirements of website accessibility (as defined in Article 3) is demonstrated, directly referencing the standards defined in Articles 4 and 5.

"Whatever monitoring and reporting arrangements are introduced, they will need to include these two additional criteria.

"HMG notes that, at this time, it is not clear how the methodology for reporting the outcomes of monitoring will work in practice. The devolved nature of website ownership across in the UK means that there is no single authority that can monitor or report on compliance. HMG therefore needs to know more about the methodology and the burden of reporting being placed on website owners.

"HMG also notes that it is not clear how the proposed European Accessibility Act will impact on the need to report compliance. The introduction of new legislation, and with it legal redress if non-accessibility prevents citizens or businesses from interacting with Government, may prove to be more effective at ensuring compliance than monitoring and reporting. The Directive requires compliance by 31 December 2015, but it is not known when the proposed legislation comes into force."

Interests of Devolved Administrations

1.18 The Minister says that the Directive applies to all Member States and therefore to the Devolved Administrations. He notes that all Government Departments and the Devolved Administrations have been consulted, via the Digital Leaders network; that further consultations will continue with those Digital Leaders; and that further consultation is required with Local Government on implementation of the Directive, including monitoring and reporting.

Legal and Procedural Issues

1.19 The Minister notes not only that the proposed legal basis for the Directive is Article 114(1) TFEU,[14] and thus subject to ordinary legislative procedures but also references to the proposed European Accessibility Act. This, he says, will have legal implications relating to the accessibility of goods and services including website accessibility, but there are no fundamental legal or rights issues within the Directive.

Subsidiarity

1.20 The Minister notes that the Directive highlights the inconsistent approach taken across the EU, the benefits to the Single Market of having a consistent approach, and outlines a proportionate approach to achieving consistency. EU adoption of the accepted international standard will, he says, help to make goods or services accessible to all across the Single Market, and supports the wider social inclusion agenda. As the UK has adopted the international standard into website guidance for public sector websites, the Government welcomes the proposed Directive.

Additional Measures

1.21 The Minister also notes that included under Additional Measures is a request for Member States to facilitate the extension of website accessibility to other public sector websites not on the concerned websites lists:

"Given the nature of UK public sector websites, it may be easier to ensure that all public sector websites are compliant by 31 December 2015 rather than wait for the European Accessibility Act to come into force, which could require compliance by all public sector websites."

Consultation

1.22 The Minister says that since the Directive deals with administrative matters, specifically the need for public sector websites to be accessible, "we do not see the need for public consultation."

Impact Assessment

1.23 The Minister says:

"No impact assessment is necessary; it does not impose any additional burdens (if websites remain compliant with previous guidance), and is designed to support the Single Market."

Financial Implications

1.24 The Minister says that there are no financial implications in implementing the Directive because UK websites should be compliant with the proposed standard.

Timetable

1.25 The Minister notes not only that Member States are required to transpose the Directive into their laws, regulations or administrative procedures by 30 June 2014 but also that concerned websites (and any others identified under Additional Measures) need to be fully compliant by 31 December 2015. The Minister says that the required standard is already good administrative practice in the UK. He also says that he does not expect the Commission to hold any discussions or further consultations with Member States on the Directive before October 2013.

Conclusion

1.26 The proposed Directive is clearly not a priority under this EU Presidency, which seems curious given its acknowledged desirability in and of itself and in relation to other major EU ICT-related initiatives (the 2011-15 eGovernment Action Plan, the wider Digital Agenda and the over-arching EU 2020 vision). The Minister notes the difficulty of fulfilling the need to monitor and assure compliance, given that the devolved nature of website ownership across the UK means that there is no single authority that can monitor or report on compliance; and says that although Member States will be free to develop their own monitoring and reporting arrangements, it is not clear how the methodology for reporting the outcomes of monitoring will work in practice — and that he therefore needs to know more about the methodology and the burden of reporting being placed on website owners (which sits somewhat oddly with his statement that the proposed Directive does not impose any additional burdens on compliant websites). This must be common to the majority, if not all, Member States.

1.27 He also suggests that, although it is not clear how the proposed European Accessibility Act will impact on the need to report compliance, its introduction, and with it legal redress if non-accessibility prevents citizens or businesses from interacting with Government, may prove to be more effective at ensuring compliance than monitoring and reporting. But he gives no indication of where matters currently stand on this legislation, other than to say that the Directive takes into account work currently underway on the proposed Act, "which is now due in 2013".

1.28 All in all, we are left with the impression that:

— Member States wish to make haste slowly with the proposed Directive, since something more effective is in prospect, i.e., the essence of the Directive, with legal redress in the case of non-compliance; and

— the Minister is content with this approach and, in the meantime, to concentrate on ensuring that all public sector websites in the UK will be compliant with the international standard by December 2015.

1.29 We should be grateful for confirmation of whether this impression is correct. We would also like to know in particular what the timelines are for both the Directive and the Act, since it seems unlikely that there will be no discussions at all in the relevant Council working group(s) between now and October.

1.30 We note that it has taken the Minister two months to prepare his Explanatory Memorandum. Even now, though dated 30 January, it did not reach us until 6 February. In an accompanying letter of 5 February, the Minister regrets that "as a result of administrative error in processing the Explanatory Memorandum is overdue". This is not a satisfactory explanation for such an unacceptable delay, one of the consequences of which is that we could not now issue a Reasoned Opinion on the proposal, if we were to have found it not to comply with the principle of subsidiarity (the deadline being 29 January). We would have wished to consider whether there was sufficient evidence that the proposal was necessary, without which we would have argued that it was not compliant with the principle of subsidiarity. We note in this regard that the European Affairs Committee of the French Senate has asked the French government to oppose the proposal on the grounds that it is not necessary. We should not have to remind a Minister of the Cabinet Office of the importance of the eight-week timetable for Parliament to consider the adoption of Reasoned Opinion, and of the requirement that the Government's Explanatory Memorandum should be submitted within ten working days of the deposit of the EU document. We ask the Minister for a full explanation of the delay in this case. If this is not satisfactory we will consider inviting the Minister to give evidence to us.

1.31 In addition, we ask the Minister to explain the basis on which the Government has concluded that there is sufficient evidence that this proposal is necessary, and that it serves a predominantly single market, as opposed to citizens' rights, objective.

1.32 In the first instance, we ask that the Minister responds to our request for clarification within two working weeks.

In the meantime, we shall retain the document under scrutiny.

1 Available at http://www.un.org/disabilities/convention/conventionfull.shtml. Back

2 Available at http://www.un.org/disabilities/convention/convention.shtml. Back

3 COM(12) 721, p.3. Back

4 European Commission (EC) Mandate M 376 requires the three European standards organisations CEN, CENELEC and ETSI to harmonise and facilitate the public procurement of accessible information and communication technologies (ICT) products and services within Europe. They will identify a set of functional accessibility requirements for public procurement, and then develop an on-line toolkit through which public procurers can access these requirements in a structured way as part of the normal procurement process. Available at http://www.mandate376.eu/.

According to its website, The European Committee for Standardization (CEN) was officially created as an international non-profit association based in Brussels on 30 October 1975, and is a business facilitator in Europe, removing trade barriers for European industry and consumers, whose mission is to foster the European economy in global trading, the welfare of European citizens and the environment. Through its services it provides a platform for the development of European Standards and other technical specifications. CEN is a major provider of European Standards and technical specifications, and the only recognized European organization according to Directive 98/34/EC for the planning, drafting and adoption of European Standards in all areas of economic activity with the exception of electro-technology (CENELEC) and telecommunication (ETSI).

See http://www.cen.eu/cen/AboutUs/Pages/default.aspx for full information. Back

5 European Accessibility Act: legislative initiative to improve accessibility of goods and services in the Internal Market. The objectives are:

· Improvement of the functioning of the Internal Market in relation to accessible goods and services in creating economies of scale and remedying market failures;

· The harmonisation of accessibility requirements in Europe addressing barriers across Member States due to diverging legislations;

· Stimulating innovation in the accessibility field through the development and use of European standards