By Dr Albert Sanchez-Graells, Reader in Economic Law (University of Bristol Law School).*
In 2016, the EU adopted the Web Accessibility Directive, which aim is to foster better access to the websites and mobile applications underpinning public services – in particular by people with disabilities, and especially persons with vision or hearing impairments.This translates into an obligation for public sector bodies to ensure that their websites and apps comply with the relevant web content accessibility standard.
The Web Accessibility Directive must be transposed into UK law by 23 September 2018. The UK Government has just published its response to a public consultation on the draft Public Sector Bodies (Websites and Mobile Applications) Accessibility Regulations 2018 (the Web Accessibility Regulations), and the Government Digital Service is developing a host of initiatives to roll-out accessibility policies throughout the public sector.
This blog post explains that UK Universities and further education institutions must comply with the requirements of the Web Accessibility Directive. Universities must be supported by the Government Digital Service and the Department for Education to ensure that their websites and apps comply with the relevant accessibility standards as soon as possible. This is not only legally mandated, but also essential to the public service mission of universities and other educational institutions.
Coverage of the Web Accessibility Directive
The Web Accessibility Directive makes it clear that it ‘aims to approximate the laws, regulations and administrative provisions of the Member States relating to the accessibility requirements of the websites and mobile applications of public sector bodies’, which include ‘bodies governed by public law, as defined in point (4) of Article 2(1) of Directive 2014/24/EU’ on public sector procurement.
The draft Web Accessibility Regulations take a slightly different approach and, rather than establishing their scope of application by reference to the transposition of the EU procurement rules through the Public Contracts Regulations 2015 (which would have been the obvious domestic instrument to refer to), they incorporate their own definition of bodies governed by public law in reg.2(1). This has created some uncertainty as to the scope of application of the future Regulations, in particular in the education sector.
However, given that the definition of ‘body governed by public law’ in the Web Accessibility Regulations matches that in Directive 2014/24/EU, and that ‘body governed by public law’ is an autonomous concept of EU law that needs to be interpreted as such; this different drafting technique does not create any deviation in the scope of application of the UK’s draft Web Accessibility Regulations, as compared to the EU Web Accessibility Directive.
UK Universities and further education institutions as ‘bodies governed by public law’
In short, and without space for doubt, inasmuch as they are subjected to procurement rules, UK universities are bound to comply with web accessibility requirements. As Dr Andrea Gideon and I argued in 2016*, this is the case. In order to be classed as a ‘body governed by public law’, an institution must (1) be established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character; (2) have legal personality; and (3) have any of a series of characteristics, which include being financed, for the most part, by the State, regional or local authorities, or by other bodies governed by public law.
Our research shows that, despite recent changes in university funding, in particular in England, UK universities meet all these requirements and remain bodies governed by public law due to their financial dependence on students’ fees and other government funding.
Indeed, English universities remain more than 50% funded by students’ fees. According to the latest available data, across the UK, universities receive public funding in excess of 50%. The same applies to further education colleges, which dependency on public funds easily exceeds 80% of their total funding. This subjects UK higher and further education institutions to compliance with procurement rules and, now, to compliance with web accessibility requirements.
Web accessibility obligations for Universities
The subjection of UK universities to the Web Accessibility Directive and the future domestic Regulations implies that they will be obliged to adapt their publicly-accessible websites and apps to the relevant technical standards. This should make them ‘perceivable, operable, understandable and robust’.
These requirements will be progressively applicable from 23 September 2019, and all websites and apps will have to be accessibility-compliant from 23 June 2021. Universities will also have to report on their compliance with the applicable rules and subject themselves to the domestic mechanism for the resolution of disputes foreseen by the domestic Web Accessibility Regulations.
One of the main points of contention is likely to concern the roll-out of accessibility requirements to university intranets and virtual learning environments (VLEs)., as they are subject to a special transitory rule that exempts them from adaptation to accessibility requirements until such websites undergo ‘a substantial revision’. Of course, under a narrow interpretation of ‘substantial revision’, this transitory exclusion from accessibility obligations could generate the wrong incentives and create a rush for universities to lock their intranets and VLEs out of the applicable regime.
In my view, a lock-in of current solutions could be problematic where these fall short of the adequate accessibility standards. Guidance by Government on the proper interpretation of ‘substantial revision’ of university intranets and VLEs seems required in order to avoid this problem.
With or without guidance, however, universities should certainly be proactive in this area it is core to a university’s mission to be inclusive and to ensure equal access to higher education. It should thus not be surprising that some universities have already voluntarily adopted the technical standards of web accessibility that will soon be mandated by the Web Accessibility Directive and Regulations—-albeit mostly only in relation to public-facing websites. However, given that the adaptation of existing websites and apps will be costly, it is important that this does not remain purely voluntary.
Support from Government Digital Services and the Department for Education
Beyond the willingness of universities and further education institutions to quickly adapt to accessibility standards, and in order to facilitate compliance with the Web Accessibility Directive, it is also important for the UK Government to support higher and further education institutions, not solely with adequate funding, but also with technical support.
This is recognised by the Web Accessibility Directive, which imposes positive obligations on Member States to promote and facilitate training programmes (Art 7(4)) and to take the necessary measures to raise awareness of the accessibility requirements (Art 7(5)).
In that regard, the Government Digital Service and the Department for Education can play an important role in the next few months by raising awareness of the requirements derived from the Web Accessibility Directive among universities and further education colleges, and by providing guidance, training and technical support on the management of digital transformation towards acessible websites and apps.
The research underpinning this blog post was published as A K Gideon & A Sanchez-Graells, ‘When are Universities Bound by EU Public Procurement Rules as Buyers and Providers? – English Universities as a Case Study’ (2016) 2 Ius Publicum, accessible at http://www.ius-publicum.com/repository/uploads/14_03_2016_9_04-Gideon_SanchezGraells_DEF.pdf.
* Dr Albert Sanchez-Graells and Dr Andrea Gideon have provided evidence to the All-Party Parliamentary Group for Assistive Technology, which will publish a report on Digital Accessibility in higher and further education in August 2018. An extended version of this post was first published at the University of Bristol Law School Research Blog on 16 July 2018.