VoxPopuLII
by John Sheridan
There is no other form of written texts quite like legislation, nor a form so suited to the web. In retrospect, readers of legislation had been waiting a long time for a hypertext system, such as the web, to be invented. It turns out, we needed one all along. The web has been transformative, primarily in terms of its impact to enable access to the law. Ready and easy public access to legislation (ideally, up to date, revised versions of the text) is of crucial importance to the rule of law, as Carl Malamud wrote in his Birthday Message as part of this series.
Widening access
The web has widened access to the law beyond all recognition in just a couple of decades. As services like legislation.gov.uk demonstrate, non-lawyers can and do routinely consult primary sources of law. We see millions of visits every month to legislation.gov.uk and we know most users of our service are not legally trained or qualified. This is to be celebrated, not least as an important contribution to the rule of law. In publishing the first legislation on the web in the early 1990s, Tom Bruce and his team at Cornell LII saw the potential of the new technology very early on and have blazed a trail ever since. We are still working through the implications of that transformation.
Legislation as data
Part of this transformation is to think about legislation as data. Anne Washington writes eloquently in her post Documents to Data – A Legal Memex, this is in itself an enormous leap forward. As the official publisher of legislation in the UK, we designed legislation.gov.uk to be both an end user service and to provide legislation data as infrastructure through an open API. We deliver legislation as open data, which others can readily access, use and re-use in their own products and services.
Non-linear content
There’s another story here too. Despite the drafter’s best efforts to create a narrative structure that tells a story through the flow of provisions, legislation is intrinsically non-linear content. It positively lends itself to a hypertext based approach. The need for legislation to escape the confines of the printed form predates the all major innovators and innovations in hypertext, from Vannevar Bush’s vision in ” As We May Think“, to Ted Nelson’s coining of the term “hypertext”, through to and Berners-Lee’s breakthrough world wide web. I like to think that Nelson’s concept of transclusion was foreshadowed several decades earlier by the textual amendment (where one Act explicitly alters – inserts, omits or amends – the text of another Act, an approach introduced to UK legislation at the beginning of the 20th century).
Function and form
There’s long been a relationship between the framing of law and the form of law – “we shape our tools and they in turn shape us” so to speak. England has a body of statute law dating back to the 13th century. Not least through the records we hold at The National Archives, it is possible to trace the evolution of the related concepts of Parliament, Law and Government over 800 years – and through that evolution see the impact of the technologies used to encode the law. From the Statute of Marlborough (the statute being the physical roll onto which the agreements of the Marlborough Parliament were written – only later, in part thanks to printing, did we come to view these portions of texts as separate Acts), the modern form of legislation has emerged gradually over time.
The Act of Supremacy, 1534 (26 Hen. VIII c. 1), a typical example of hand written legislation.
The printing press had an enormous impact on the form of law, codified for the those of us with the Westminster system, in the 19th century by Lord Thring in his book Practical Legislation. More recently, modern drafting tools, that enable the easy management of cross-references within and between texts, have enabled far more deeply entwined laws. The complexities of the modern world have given us deeply intertwingled laws.
Legislation is deeply intertwingled
Today’s statutes can be conceptually dense. Yet there’s no rhetoric or repetition to aid the reader, nor, in the UK at least, are there often purpose provisions, examples or diagrams to elucidate the meaning. Legislating in a common law environment, an Act of Parliament, even a principal Act, does not so much set out the law in an area, as set out the changes to an existing body of law – changes across both statute and common law. Statutes rely on the existing law as well as change it. They will use terminology around which a body of pre-existing law exists, either through Interpretation Acts, or established case law for terms such as “reasonable”, or “having regard to”. Moreover, they will be silent on topics where the existing law does not need to change. The intertwingled nature of modern statute law provides a significant barrier to understanding and comprehension, for lawyers and non-lawyers alike. As Alison Bertlin writes in her Loophole article, What works best for the reader? A study on drafting and presenting legislation, “Readers seem to have very little grasp of how legislation is structured and organised. Their ‘mental model’ of it is simply not very good.” It is here that we publishers can best make a contribution to accessible law through how we present legislation on the web – retrofitting the mental model the reader lacks, through the user interfaces we design.
Limits on machine processable laws
As a technologist by background, I recognise the desire to think of the body of legislation as being the Operating System for a country. In many ways, I like the analogy and we are making progress towards machine processable laws. There are valuable standardisation efforts like LegalRuleML, which seeks to define a rule interchange language for the legal domain. The aim is to enable the structuring, evaluation and comparison of legal arguments represented using the rule language. In the era of digital government this idea has real allure. There are potentially enormous benefits and efficiency gains to be had from running legislation as code. However, I often wonder whether these efforts perhaps miss the nature of the law, or at least the common law. The intertwingled nature of the law – a feature that aids the common law’s resilience and ultimately underpins our notion of justice – poses significant engineering challenges. There may be better prospects for machine processable legislation where there are formal legal codes, which sets out all the law in a given domain. It will be interesting whether legislation becomes more codified, modular and self-contained in future, in a drive towards machine processability.
There is much still to do
We have turned our legislation into hypertext and massively widened access, but we have yet to escape the printed form of legislation or to realise the full benefits. This is compounded by the limitations of the web as a hypertext system and the complexity of legislation – imagine what we could do if we had something closer to Ted Nelson’s original vision! It is a revolution still underway, and for all of us interested in legal informatics, there is much still to do.
John Sheridan is the Digital Director for the National Archives of the United Kingdom. He was previously Head of Legislation Services at The National Archives, where he led the team responsible for developing legislation.gov.uk.
