Sarah Glassmeyer and I were discussing her study of online legal information in the USA. I asked whether the complexity of law itself was one of the main barriers to access, to which she replied
‘yeah. That’s definitely an aspect and part of my thought that I need to lower expectations. Asking myself “what’s enough?” ‘
Which led me to think about that question- what is ‘enough’, what would it be reasonable to expect from a system of access to legal information? And as I considered this I was led to think about more general issues of access to information, public legal information, and public legal education. Here are my initial thoughts… for more background see the paper Sarah and I co-wrote.
In a system based on the rule of law, knowledge of the law is very important. Given that total knowledge is beyond us all, in reality this translates into the ability to find out what the law is as it applies to particular situations. How can members of the public achieve this? How can they get hold of reports of cases, details of statutes, and interpretations of the law? What could we do to ensure ‘enough’ information is available.
A common answer is ‘put it all online’- or indeed ‘isn’t it all online?’ We can simply put all primary legal materials on servers- all of the cases, the statutes, the regulations…- and people can then find what they need when they need it. It’ll all be accurate and up to date, and people need never leave the comfort of their own home / favourite coffee shop.
In the UK primary materials are readily available online, through sites such as www.legislation.gov.uk and www.bailii.org. There are some sites offering interpretation / guidance, such as those put together by charities. So, problem solved?
Not quite. In no particular order, the issues are…
1) Access and skills
We cannot blithely assume that all people have ready- or indeed any– access to the internet. (i) A related problem is that for many people their local public library was a place to get online and with many closing, this form of access has been lost, along with the loss of acces to print resources and expertise in the use of materials.
And even where there is access, there is an issue with the ability to use the internet. As reported at http://theinformed.org.uk/2015/11/digital-divide/ 20% of adults lack basic online skills. This is not a matter of not understanding legal information – to which we will return- but an issue with how to make use of any online information systems.
This is not simply a generational issue. We often hear talk of ‘digital natives’ and many assume that ‘the young’ have an uncomplicated relationship with the internet. This idea has several problems – terminology for one, simple inaccuracy for another- and does not capture the complexity of people’s experience of the internet.(ii) Facility with some aspects of using online systems does not translate into facility with all aspects.
These problems of access to online sources and the ability to use online sources represent one barrier to an online system as a sufficient answer to making ‘enough’ material available. The former could be solved by investment in affordable broadband provision; the latter through a programme of education and training, starting with schools.(iii)
2) The nature of legal materials
The complexity of law is the issue here. Government in the UK has found it hard to provide a comprehensive and up to date database of statutes.(iv) The online statute book has come a long way but is still not completely up to date and requires quite a bit of work to make sense of any changes. Case law is provided through site such as www.judiciary.gov.uk and BAILII (www.bailii.org) provides extensive coverage- but in both cases we have the transcripts, with no indication as to the importance of a case or any clue as to its precedential value. What we have is the ‘raw’ material of the law. Which leads us to…
3) Understanding the law
We are most of use lay people when it comes to the law. Mere access to the ‘raw’ materials of the law does not translate to understanding of the law as it applies to a person’s particular issue.
There are many guidance sites which offer some form of interpretation / advice, and many services such as Citizen’s Advice and trade unions which can offer some help. For many people, however, such services are not accessible- some for the problems outlined in section 1, others because of cuts to such services, and of course some are membership only benefits.
4) What then is ‘enough’?
‘Enough’ is not just about being comprehensive in terms of the information available.To be ‘enough’ a system would need to provide ready access to legal information and also to guidance on the law. A print based system would look like a ‘digest’ or encyclopaedia, held in public libraries or open access law school libraries, with access to trained staff for advice and guidance.
What would an online ‘enough’ system need to work?
Provision- primary legal material being made available, in updated form, online
Access– improved access to the internet. Not necessarily about speed, just simple access.
Training– providing training in computing skills, and then more specifically the use of the internet. Could extend to critical information literacy. (v)
Education– education in making use of and understanding legal materials
For me this raises the question, “what is the role of legal publishers and law schools in such a system?,” which that will be the subject of my next post.
(i) See http://theinformed.org.uk/tag/digital-divide// for more in depth discussions and figures.
(ii) See http://www.oclc.org/research/themes/user-studies/vandr.html and http://www.donnalanclos.com/?p=221 for a more detailed discussion of the issues and an alternative approach based on the idea of ‘Visitors and Residents’
(iii) See http://theinformed.org.uk/2015/11/digital-divide/ for a discussion of the ‘Digital Eagles’ programme and the problems with using private companies to meet the need for education and training for use of the internet
(iv) See https://www.gov.uk/guidance/good-law for details of the work being done in this area
(v) On which see http://ojs.lboro.ac.uk/ojs/index.php/JIL/article/view/LLC-V7-I2-2013-2