Legally and politically important
Not cleared from scrutiny; further information awaited
Proposal for a Directive on the accessibility of public sector bodies’ websites
Article 114 TFEU; QMV; ordinary legislative procedure
(34512), 17344/12 + ADDs 1–2, COM(12) 721
1.1This proposal first emerged in 2012. It seeks to improve the accessibility of public sector websites, and thereby help Member States meet their obligations under the relevant UN Convention (see “Background”), and facilitate cross-border access, by harmonising the approaches taken by Member States and thus removing the significant differences currently in place across the EU.
1.2The Directive is aimed at public sector bodies because they provide essential information and services to citizens. The Commission argues that harmonisation would also assist businesses, especially SMEs, by helping to remove uncertainties over web accessibility specifications and standards; and also help web developers create a more secure and sizeable market, with positive spin-off for their work in other sectors. In developing the Directive, the Commission took account of existing standards on Web Content Accessibility Guidelines (WCAG 2.0) issued by the World Wide Web Consortium (W3C); European Standardisation Organisations (CEN, CENELEC, and ETSI) were accordingly developing a standard that conformed with this international standard. The background and details of the draft Directive are summarised in the previous Committee’s first relevant Report (and the types of public sector bodies’ websites as referred to in Article 1 are at the Annex to this chapter of our Report). The Directive would be reviewed within three years of its entry into force.
1.3The then Minister (Mr Francis Maude; now Lord Maude) welcomed the proposal. He explained that the UK was already up with the game, and agreed with the assessed Single Market benefits. He also made it clear that, notwithstanding its acknowledged desirability, the proposed Directive was not a priority under the then EU Presidency. He also suggested that, although referred to, it was not clear how the proposed European Accessibility Act (EAA) would affect the need to report compliance; and that, since the EEA would provide for legal redress if non-accessibility prevented citizens or businesses from interacting with Government, it might prove to be more effective at ensuring compliance than monitoring and reporting. But he gave no indication of where matters stood on this legislation, other than to say that it was “due in 2013”. All in all, the Committee was left with the impression that:
1.4The then Committee also asked for an explanation of the delay in submitting his Explanatory Memorandum, one consequence of which was that the Reasoned Opinion deadline had passed; and for his views on the proposed legal base, Article 114 TEU (approximation measures which have as their object the establishment and functioning of the internal market).
1.5The then Minister’s response is set out in our predecessors’ second relevant Report. They accepted it as sufficient both in terms of explaining and apologising for the delay, and asked him to ensure that this did not happen again.
1.6With regard to the use of Article 114 TEU, the then Minister said that, as the Directive was about the technical accessibility of websites, it had been assessed from the perspective of website usability and accessibility, not from that of its impact on the Single Market. But, recalling what he himself had said at the outset, the single market aspects and benefits were evident; thus, in the then Committee’s estimation, basing the Directive on Article 114 was properly arguable. Moreover, it remained difficult not to continue to see the proposed Directive as marking time, until the proposed European Accessibility Act saw the light of day. As the Minister still had no news on timing, the then Committee asked him to keep it informed as and when there were relevant developments with either this proposed Directive or the EAA. In the meantime, the draft Directive remained under scrutiny.
1.7Council discussions then stalled on this Directive for some time; the then Minister hoped the Latvian Presidency might renew interest in this Directive, but this did not happen (see “Background” for further details).
1.8The Minister for the Cabinet Office and Paymaster General (Matthew Hancock) now says that, when his predecessor last wrote, the then Government’s position was:
“to support the Directive as we believed the UK was already going beyond the requirements set out in the Directive. It has been the policy of successive governments to adhere to the WCAG 2.0 standard in the public sector, though this is not enshrined in law. The legal basis for accessibility in the UK is not based on standards but instead on duties to make ‘reasonable adjustments’ to make services accessible to people with disabilities.”
1.9Much has occurred since this last update. The Minister goes on to say that, after the failure of the Latvian Presidency to renew interest in this Directive, Council Working Group negotiations restarted and progressed rapidly from October to December 2015; the Luxembourg presidency agreed a mandate at COREPER to begin informal trilogues with the European Parliament in December 2015; but the UK “did not support the mandate at this time because we did not have an agreed position to do so” and because of various policy concerns. Subsequently, he and his officials have been “working with other member states and the Commission to ensure that:
1.10The Minister goes on to say that a “number of these concerns have now been addressed in Council negotiations”; that he is “hopeful that we can maintain them in the informal trilogues and beyond”; but that a “number of areas continue to be a concern” (see “Background” for details).
1.11So far as the EAA is concerned, the Minister says that “the overlaps” are minimal, with the only significant one being that “the accessibility standard being introduced for websites in the EAA is the same standard being referenced in this Directive”, which means that “[a]t this time, they should be seen as complementary, rather than overlapping in nature”.
1.12The Minister concludes by stating that his position “should now be” to support this Directive only if the concerns he has highlighted can be addressed.
1.13The Minister begins with the most cursory of apologies, for not having written sooner (having taken over this portfolio last May). Given the previous history, this is the least he could have done. He also undertakes to “keep you informed on progress ahead of this proposal returning to the Council of Ministers for further discussion or agreement”: likewise, since his and his officials’ apparent lack of attention to the previous consideration of this “dossier” has meant that we have been unnecessarily unaware of any of the developments outlined in his letter. This is unacceptable, and must not be repeated.
1.14The draft Directive is now presumably very different from that deposited in 2013. Other Ministers find no difficulty in keeping the Committee full up-to-date with the negotiating process, regardless of whether the text under discussion can be put into the public domain, and particularly when a version is going to COREPER for a decision on whether or not to move forward after working group negotiations. This is particularly the case when the Council itself is acting in a most untransparent way establishing an informal mandate through COREPER rather than by agreeing a general approach in Council, which would not only have been a document in the public domain but also subject to the scrutiny reserve of this House. Although he does not refer to it in his letters, the Council has in fact put into the public domain the negotiating mandate of December 2015, but not the second mandate which appears to have been put forward for agreement in a Presidency document of 25 February 2016. The negotiation mandate of the European Parliament is also in the public domain.
1.15We intend to take up the issue of the transparency of Council Decision making in a future inquiry. In the meantime we ask the Minister to clarify:
1.16We also ask that the Minister ensures that, from now on, he writes to us prior to any further COREPER discussion about how matters stand, and what his position is. We would also require him, as do his counterparts, to write to us prior to any proposal to elevate the “dossier” to Council level, outlining the main features of the revised text and what his own position then is.
1.17In the meantime, we shall retain the document under scrutiny.
1.18The UN fact sheet, “The Convention in Brief”, 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).”
1.19The then Minister said that progress on the proposal had been “effectively stalled with successive Presidencies prioritising other work whilst waiting for a way forward that removed the impasse created by the need for a delegated act”; and that that “impasse” was broken when, in late 2013, the European Telecommunications Standards Institute published a new standard () on “accessibility requirements suitable for public procurement of ICT products and services in Europe”. Publication of the new standard had led to the Commission reviewing the proposal — “making a number of amendments to address concerns from Member States and delays in making progress on the Directive”. However, further progress on the Directive was delayed by the formation of the new Commission; and although the incoming Latvian Presidency had indicated that it would like to see progress on this matter, “they also want to see progress on a number of other Telecommunications Council matters”; he would provide a more substantive update when plans were clearer, and apologised for not having provided an earlier interim update. The then Minister also confirmed that no further progress had been made on the proposals for the European Accessibility Act.
1.20The Minister details his concerns as follows:
“The government does not believe the current definition of ‘public sector bodies’ is appropriate. This broad definition of ‘public sector bodies’ is legally unclear, open to interpretation and could significantly increase the economic burden on the UK.
To be clear, the UK should live up to its existing commitments and legal requirements in respect of people with disabilities; but nationally these obligations are framed in the context of ‘reasonable adjustments’. If we are to move away from the concept of reasonable adjustments, which are based on individual user need, towards a hard rule of applying standards for web accessibility that we monitor and enforce, we must have clarity about what constitutes a public sector body.
The government would like to see a scope that is clear — that means limiting the applicability of the Directive to central, local and devolved government. Given the Commission’s belief that implementing this Directive will create a multiplier effect in the broader digital services industry, this does not water down the intent, but instead helps to clarify it so that we know what action we need to take”.
“The need for a clear definition of ‘public sector bodies’ is further highlighted in relation to compliance, monitoring and enforcement. The Directive asks member states to establish a regime to assess how well they are meeting the new standards. Whilst a good objective, it is unachievable in its proposed form because:
1. without a clear scope (e.g. without a clear definition of ‘public sector body’) we cannot assess the UK’s compliance with the standards in the Directive
2. the technology and assessment techniques to achieve monitoring of web accessibility simply don’t exist at a scale that make this objective possible to achieve without significant financial cost to public sector institutions
Separately, the standard which this Directive will bring into force requires compliance to be absolute. In order to be compliant with that standard, a website must meet or exceed all of the listed criteria and remain compliant at all times. Whilst this is technically possible, it is practically unachievable”.
“In previous correspondence, the committee noted the potential overlaps with the European Accessibility Act (EAA). At the time, the Commission’s plans were unclear about when the Act might actually be published — it now has been.
The Department for Business, Innovation and Skills already submitted an Explanatory Memorandum on the EAA to Parliament earlier this year on 13 January 2015. Broadly, the overlaps of this Directive with the EAA are minimal. The only significant overlap is that the accessibility standard being introduced for websites in the EAA is the same standard being referenced in this Directive. At this time, they should be seen as complementary, rather than overlapping in nature.”
1.21The Minister concludes thus:
“Given how negotiations on this Directive have progressed, our position should now be to only support this Directive if the concerns I have highlighted above can be addressed. I will keep you informed on progress ahead of this proposal returning to the Council of Ministers for further discussion or agreement.”
i)Income taxes: declaration, notification of assessment;
ii)Job search services by labour offices;
iii)Social-security benefits: unemployment benefits, child allowances, medical costs (reimbursement or direct settlement), student grants;
iv)Personal documents: passports or driving license;
vi)Application for building permission;
vii)Declaration to police, e.g. in case of theft;
viii)Public libraries, e.g. catalogues and search tools;
ix)Request and delivery of birth or marriage certificates;
x)Enrolment in higher education or university;
xi)Notification of change of residence;
xii)Health-related services: interactive advice on the availability of services, online services for patients, appointments.
1 CENELEC is a European regional standards organization that together with its sister organizations CEN, the European Committee for Standardization, and ETSI, the European Telecommunications Standards Institute, compose the so-called and known European Standards Organizations (ESOs), which are officially recognised by the European Commission and act as a European platform through which European Standards are developed. See for further information.
2 See Thirty-second Report HC 86–xxxii (2010–12), (13 February 2013).
3 See (34512), 17344/12: Thirty-fifth Report HC 86–xxxv (2010–12), (13 March 2013).
4 COREPER, from French Comité des représentants permanents, is the Committee of Permanent Representatives in the European Union, made up of the head or deputy head of mission from the EU member states in Brussels. Its job is to prepare the agenda for the ministerial Council meetings; it may also take some procedural decisions. It oversees and coordinates the work of some 250 committees and working parties made up of civil servants from the member states who work on issues at the technical level to be discussed later by COREPER and the Council. It is chaired by the Presidency of the Council of the European Union. There are in fact two committees: COREPER I consists of deputy heads of mission and deals largely with social and economic issues; COREPER II consists of heads of mission (Ambassador Extraordinary and Plenipotentiary) and deals largely with political, financial and foreign policy issues.
5 Council Doc .
6 Available at .
Prepared 30 March 2016