Out-Law Analysis | 19 Mar 2010 | 1:10 pm | 4 min. read
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.
By Struan Robertson, editor of OUT-LAW.COM. The views expressed are Struan's and do not necessarily represent those of Pinsent Masons.
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.