Portuguese Presidency of the European Union

Portuguese Presidency of the European Union

Ministerial Conference on Knowledge and Information Society.

10, 11 April, 2000.

Lisbon, Portugal.

Panel on Citizens with Special Needs.

Legal and Policy Perspectives from Ireland.

Dr Gerard Quinn.

CONTENTS.

(1)Introduction.

Part 1

The Evolution of Irish IS Policy and Disability.

(1) Report of the Commission on the Status of People with Disabilities (1993-1996 with respect to the IS).

(2) Information Society Commission and Disability.

(3) Inter-Departmental Implementation Group on the IS and Disability - Web Design Guidelines.

Part 2

The Regulatory Framework.

(1)Which Approach - Regulation, Deregulation or Anti-Discrimination Law?

(2) The 1997 Equality Bills - a Detour to the Supreme Court.

(3) The Revived Equality Bills - 'Reasonable Accommodation' in the form of Internet Accessibility.

(4)New InstitutionalMachinery - The National Disability Authority Act (1999 and the possibility of Adopting an Internet Code of Practice).

Part 3.

Conclusions and Recommendations - The Need to Underpin Irish Policy with European Standards.

[S]ocial exclusion…takes account of the new and emerging forms of

poverty and disadvantage brought about by rapid economic, social and technological changes'

National Anti-Poverty Strategy (Ireland), 1997.

When Boeing says the Web can help us do business with "anyone, anywhere, anytime" we mean anyone.

Ann Bassetti, Web Products Manager, The Boeing Company.

1. Introduction.

Ireland is now ranked 19th out of the 55 countries that make up 97% of the world's GDP and 99% of its IT expenditure[1] according to the IDC/World Times Information Society Index (ISI). This represents a move of three full places from 22nd place to 19th place in the space of just one short year. Indeed Ireland is now the second largest exporter of software in the world. While most of this software originates in the US it is customised in Ireland for global export - a fact that gives Ireland unique leverage over software products used on a world wide basis.

The new knowledge-based economy of Ireland is helping to drive an annual growth rate that is averaging about 7%. All this has occurred very rapidly in a country that was formerly known only for its agricultural exports as well as for its high rate of economic emigration. All of which means there can be few better test cases in which to examine the level and depth of commitment to ending social exclusion through the powerful tools provided by the Information Society (IS) for the benefit of people with disabilities.

The purpose of this paper is to take stock on how far Ireland has advanced in creating pathways for more inclusion through the IS for people with disabilities. A core issue is the status of 'universal design' or 'design for all'. As such this paper will look at recent policy initiatives and also at the overall regulatory regime. Lastly it will draw together some conclusions and formulate appropriate recommendations

A few general points seem in order. Knowledge is power and (along with capital and labour) it is now the main the source of wealth in new economies. Effective exclusion from the IS - which is the engine of our new economies - means that existing levels of marginalisation can be magnified many times over and that new underclasses can be created. Such exclusion is socially impermissible and economically irrational.

Through the tools of the IS we now have the capacity to end or at least ameliorate social exclusion and to build a genuinely inclusive society and economy. That makes sound social sense. But it also makes sound economic sense. Greater economic inclusion means less dependence on welfare, more overall economic activity. It leads to increases in the level of consuming power of minority groups with special requirements that can, in turn, drive new sectors of the economy including the assistive technology sector. In short, ensuring more economic and social inclusion through the tools of the Information Society is not merely a civilising factor but is also a productive factor.

Although deeply commited to social partnership Ireland remains for historical reasons heavily influenced by thinking in the United States. There the relevant issues are not seen primarily as social policy issues but as civil rights issues. The related notions of equal opportunities and non-discrimination provide the conceptual backdrop to the debates about the IS and disability. Of particular interest - and of some influence - are two reports of the US National Council on Disability; Access to the Information Superhighway and Emerging Information Technologies by People with Disabilities (1996) and Access to Multimedia Technology by People with Sensory Disabilities (1998)

Of especial significance in the regulatory and legislative context is the ongoing debate in the US whether the obligation of 'reasonable accommodation' contained in Title III of the Americans with Disabilities Act (1990) reaches the design of internet web sites. Although the ADA was drafted long before the Internet became the force it is today the statutory language used in it is probably broad enough to capture the provision of such services. Therefore, non-discrimination law provides an alternative means with which to ensure adherence to the principle of universal design.

The recent testimony of the Chair of the US National Council on Disability, Marca Bristo, before a US Senate Committee in February of this year to that effect is very significant since similar provisions in Irish anti-discrimination legislation will have to be assessed as to their applicability to web site design. Indeed, if any future EU Directive were to be drafted under Article 13 TEU dealing with the provision of goods and services it will have to broach this question.[2]

I mention the US not just because it has influence (maybe disproportionate influence) over Irish thinking but because a bridge for the exchange of policy perspectives now exists between the EU and the US Administration through the New Transatlantic Agenda (NTA). In fact disability was added to the NTA mechanism in 1998 and a major US/EU conference was held in Madrid in October 1998 on Harnessing the Information Society top Raise Employment Levels for Workers with Disabilities'. Reference will be made to its conclusions later.

Part 1

The Evolution of Irish IS Policy and Disability.

(1)Report of the Commission on the Status of People with

Disabilities (1993-1996) with respect to the IS.

1993 represents year zero for people with disabilities in Ireland. In that year the Government decided to establish a Commission on the Status of People with Disabilities. The chief task of the Commission was to take stock of Irish law and policy and to make practical recommendations to Government concerning a new strategy. It reported back to Government in late 1996[3]. The Commission used the United Nations Standard Rules on the Equalisation of Opportunities for People with Disabilities as its core framework of reference. All its recommendations were accepted by Government and indeed political parties began to compete as to which was best suited to implement the report.

A significant part of the Commission's report dealt with 'Technology and Communications'. In fact, the Commission convened a special working group on this topic that drew inspiration from the European HEART study. The report of the working group is extremely detailed and is essential reading for anyone wishing a grounding in the Irish context. It was not published but is available from the main Ministry involved.

The Commission's report stated

Technology and Communications can play a major role in helping people with disabilities to secure equal status in most areas of life and society. It can help people with hearing impairments to communicate; visually impaired people to 'read' and use computers; physically impaired people to live independently, work and get about. However, it can also create barriers with the increased sophistication of everyday services such as banking and buying tickets. Too much technological adeptness may be required of people.

[para. 14.1].

The report noted that general items of technology in everyday use should be useable by people with disabilities but often they are not. The report recommeded legislation in line with the UN Standard Rules to ensure equal access to communications. It also recommended setting up a single agency with responsibility for assessing and supplying assistive technology. More particularly, the report recommended breaking down a variety of telecommunications barriers while trying to avoid the risk that reliance on telecommunications might create barriers of its own. The report did not directly address the IS partly because there was not sufficient awareness even then (1996!) of its significance. But the general recommendations with respect to technology and communications can certainly be applied with great effect.

When accepting the recommendations of the report the Minister of the day responsible (Mervyn Taylor T.D.) established an Inter-Departmental Taskforce to prioritise its recommendations and put a plan of action into effect. The first progress report of the Taskforce was issued in January 2000[4]. The progress report gives details as to which state agency has responsibility for implementing the recommendations. In reality not much progress could be reported as to substance. Real progress awaits the establishment of a National Disability Authority (see below).

(2). Information Society Commission and Disability.

In 1997 the Irish Prime Minister (Taoiseach), Bertie Ahern T.D., (who is himself a noted computer enthusiast) set up an Information Society Commission. Its chief functions are

-to conduct research and to benchmark Ireland against other countries in its development as an Information Society

-to provide research and guidance to the Government on what policies should be adopted to ensure that Ireland develops to its full potential as an Information Society,

-to promote awareness and understanding of information and communications technology amongst the general public and the business community.

The Commission reports directly to the Prime Minister. It immediately developed a work programme that is divided into five pillars[5];

-Pillar 1 - Awareness

-Pillar II - Infrastructure

-Pillar III - Learning

-Pillar IV - Enterprise

-Pillar V - Government, (i), legal issues

-- Government (ii), Government Services and Social Exclusion.

The last Pillar is the relevant one in the context of disability. With respect to its work under this Pillar the Commission stated

Urgent attention will also be given to the issue of universal design to ensure that where new technologies are being employed for the delivery of government services the needs of marginalised groups, especially those with disabilities, are incorporated at design stage. The Commission will continue to stress the need for people with disabilities to be included in the target group of the many initiatives using information and communications technology which are being developed. These needs must be taken into account in evaluation criteria used in this context. It must alkso be stressed that methods of service delivery which are designed specifically to be more accessible to people with disabilities are typically simpler for everyone to use[6].

The Information Society Commission issued a discussion paper on IT Access for All in November 1999 and issued its final report on the topic in March 2000[7]. With respect to enhancing physical access it recommended that people with disabilities should be allowed VAT refunds on information and communications technology and assistive technology[8]. With respect to the level of technology available for public use the Report recommended that organisations that provide such access should ensure that their premises are accessible to people with disabilities and that the technology itself is situated in a part of the premises that is fully accessible[9]. Significantly the report asserted that

…the PC, as the main delivery platform for communications services, can in itself act as a major barrier to access. The hardware is bulky and cumbersome and the software still has a long way to go before it becomes truly user-friendly.

The principle of universal design should be applied to the development of all new electronic devices and services. It should be remembered that products that are developed to be easier to use for people with disabilities are typically simpler for everyone to use.

In particular, the standard range of hardware and software do not cater adequately for people with special needs, especially people with mobility impairments, visual impairments or general learning difficulties. Where software is specially developed, for example screen readers for people who are visually impaired, they often encounter problems with web-sites that are not accessible.[10]

The following recommendations are then made:

• Hardware and software designers should consult with disability groups to ensure that their products are accessible to people with special needs
• All public service bodies should implement the Government's Web Publication Guidelines and these should also be promoted to the private sector to ensure that their web-sites are accessible[11].

The report deals with general questions of access separately but also mainstreams disability throughout. For example, a separate recommendation deals with ICTs in schools and adds that 'where IT access is being provided for the community, full consideration must be given to the needs of people with disabilities'[12]. There is also a recommendation to the effect that a '24 hour public access lobby should be installed in any new Government public office buildings and retro-fitting should be included where appropriate, taking into account the needs of people with disabilities'[13]. Likewise with respect to the provision of goods and services[14].

Apart from outlining these recommendations the report also contains an examination of successful case studies. Of particular interest is the Ennis Information Town project which is sponsored by Eircom (Ireland's largest telecoms company). This project directly stimulated the Disabled People's Organisation of Clare (DPOC) to get wired and they have now issued their own CD-rom on services for people with disabilities in the locale.

(3) Inter-Departmental Implementation IS Group and Disability.

In parallel, but looking more at the public sector, the Government established an Inter-Departmental Implementation Group on the Information Society. In its first report of December 1998 the Group called for enabling measures to address social exclusion issues in as much as they inhibited access to the Information Society[15]. As a result an Action Plan was drawn up and issued by Government in January 1999[16]. Among other things it called for the Information Society Commission to examine the possibility of e-mail for all. More specifically it stated

42. Service-wide guidelines and practices will be adopted regarding content format and presentation, etc., for websites, and an inter-departmental group will be established to deal with these issues.

The group referred to above was duly convened and reported to Government in October 1999[17] with detailed guidelines on website design and content in the public sector. Its very first recommendation was as follows:

Guiding Principle:- Websites should be designed and operated in accordance with the needs of users. A well designed and easy to operate site is an invaluable communication/customer service tool for public sector organisations.

More specifically, the guidelines go on to focus on disability and state

Recommendation 7.1. The key principle underlining accessibility is that websites should be easy for everyone to use including people with a disability. Websites should be designed in accordance with univeral design principles which makes it easy to locate and access information on the net. Sites which are well designed will meet the needs of all users and therefore, will not have to be especially adaopted for the elderly and those with a disability.

The Guidelines provide extremely useful and practical tips on improving accessibility. Recommendation 7.2 urges that sites be put through the 'Bobby Test' which is an accessibility test provided on the Web by CAST (Centre for Applied Science and Technology)[18].

Part 2

The Regulatory Framework.

(1)Which Approach - Regulation, Deregulation or Anti-Discrimination Law?

There are two ways of brining about accessibility through law. One is to regulate an industry and subject it to the requirement of 'universal design'. Actually - as recent US telecommunications law testifies - such accessibility standards need not form part of new regulation but may in fact be inserted as bedrock provisions in a de-regulatory legal package.

The other way is to put inaccessibility on the defensive as a form of discrimination and to require, through anti-discrimination law, the principle of reasonable accommodation which in this context means making web sites accessible.

So far and with respect to the access question, Ireland has gone down the anti-discrimination route. It possesses sweeping anti-discrimination law that requires reasonable accommodation to the needs of persons with disabilities. This law has potentially great significance in the context of the tools of the IS.

(2) The 1997 Equality Bills - a Detour to the Supreme Court.

In 1996 and before awaiting the conclusions of the Commission’s Report the Government proceeded to publish two key Bills: the Employment Equality Bill and the Equal Status Bill[19]. As the titles suggest, the first Bill deals with employment and the second with the provision of goods and services.

The key to modern anti-discrimination legislation in the context of disability is the obligation to engage in 'reasonable accommodation' . Through this principle it could become possible to oblige employers to adjust the workplace using ICTs for example to enable an employee with a disability to perform the main functions of a job. Likewise, the designers of web sites and internet service providers could be conceptualised as providing a service and therefore subject to an obligation of 'reasonable accommodation' to make those sites accessible to persons with disabilities. Much turns on the content of the legislation.

As drafted both these Bills contained fairly weak provisions that obliged private actors (e.g., employers or the providers of goods and services) to provide ‘reasonable accommodation’ for persons with disabilities. Indeed, originally, neither Bill contained an explicit requirement to engage in 'reasonable accommodation'. Section 16(3) was added to the Employment Equality Bill under sustained pressure from the opposition to make the obligation explicit. It was, however, subjected to severe limitations including a fairly open-ended defense of 'undue hardship'.