Making New Law in Scotland – Digital Law and the New Parliament

April 30, 2000

John Sibbald of Professional Library Services, Chairman of theSociety’s Scottish Group, reports on the Conference held in Edinburgh on 31January 2000, which was organised by the Scottish Group and the Governance ofScotland Forum of the University of Edinburgh.

The new Scottish Parliament has a unique opportunity to modernise the law ofScotland by the use of information technology. The aim of the Conference, whichhad been chiefly sponsored by Telewest, was to show how such opportunities couldbenefit not just the administration of Parliament, but the legal system,industry, education and consumer protection. Providing law in digital form willcontribute towards Scotland’s image as a modern, vibrant and technology awaresociety. It will enable access to law by the citizen and his advisers, leading,in the long run, to a more just and better society. The Conference, therefore,focused on three significant issues:

1. The need for and the benefits of greater access to law by the citizen andhis advisers as this is now increasingly enabled by information technology andthe prospect of digital tv.

2. This depends on there being available a common source or entrance pointproviding all the benefits offered by IT (ie searching, hypertext linking asbetween texts and distributed databases, etc.)

3. This in turn depends on primary sources of law being created, promulgatedand maintained in digital form and the unique opportunities open to the newParliament to undertake this.

John Sibbald, who chaired the first session, began byconveying good wishes for the event’s success from the Society’s Presidentand Joint Chairmen to a capacity audience of some 270 attendees, includingrepresentatives of the new Scottish Parliament, the judiciary, the ScottishExecutive, the legal professions, the police, local government, community legaladvice agencies, and from a wide range of professional, business and educationalbackgrounds. In particular, he welcomed representatives from the NorthernIreland and Welsh Assemblies. He explained that, since announcing theConference, there had been a major development with the launch of the Ukileliproject. After summarising progress with this development, he introduced thefirst speaker, Professor Neil MacCormick QC MEP, Regius Professor of Public Lawat the University of Edinburgh, who had kindly agreed to speak literally enroute to a meeting of the Justice Committee of the European Parliament inBrussels later that morning.

The Digital Statue: Law for the here and now

Professor Neil MacCormick pointed up the extraordinaryopportunity open to the new Scottish Parliament in that it commences itslegislative business with a blank statute book. His proposal that Parliamentshould take this opportunity to harness the power of IT to create a‘Synchronous Statute Book’ succinctly set the scene for the rest of themorning . (It was wholly appropriate that he should have set the scene as theidea of the conference had sprung from the SCL Scottish Group’s AnnualLecture, which he had delivered in June 1998, under the title ‘The ScottishParliament as Law Maker – Laws for an Information Age?’.) (See theAugust/September 1998 issue, vol 9, issue 4.)

A Statute Book, shaped by information technology rather thanGutenberg technology, could adopt a wholly different principle of order.Chapters could be arranged thematically, eg property, persons, obligations,actions or other more modern thematic subdivisions, with each new law beingslotted into its appropriate chapter. Arranged in this manner and with thedevelopment of private and criminal codes, bi-annual restatements of the lawcould be undertaken. Synchronous publication, which IT made possible, wouldinvolve the statutes appearing with amendments incorporated (although it wouldremain important to ensure access to the law as it stood at an earlier time). Asa result of this it would no longer be necessary to work back through a seriesof statutes to determine the current state of the law. The law would always bethe law of here and now, maintained in an up-to-date format.

Scots Law on the Net: Laying the groundwork for a modern legal system

The next speaker, Professor Hector MacQueen, Dean of theUniversity of Edinburgh Law School, continued the theme in looking more closelyat how creating law in digital form could improve the existing structure of thelaw.

At present, the law on the Net is simply law on papertransferred to a new medium. Indeed, in some ways the only benefit is theaccessibility as generally texts appear without the highly developed editorialapparatus by which hard-copy publishers have traditionally made their materialuser-friendly. The Internet has not brought about any transformation of thepresentation of the raw material of the law.

Referring to Richard Susskind’s The Future ofLaw, Professor MacQueen described Susskind’s vision of the future, wherelawyers will largely cease to advise clients directly and will instead providelegal information and guidance to a much wider clientele through the systemsprovided by IT. Susskind appeared to assume that the availability of theInternet will not change the way in which the sources of law themselves areinitially presented which would remain the job of the practising lawyer. But ifthis could be done by lawyers, could it not also be done by the law-makers?

Professor MacQueen contended that not enough attention hadbeen given to the way in which the legal source material itself is presented inour thinking about the potential impact of digital technology upon law. On theone hand, the common law tradition, with its preference for reasoning upwardsfrom facts, had long viewed codes of law as a ‘bad thing.’ On the otherhand, the expectations of the general public are for a body of rules which willprovide specific answers when it is asked specific questions.

The arguments in favour of codification of the law arereinforced by the availability of the Internet as a means of disseminating thelaw. With a code or codes, the speaker believed we would have the law stated interms of general rules and set out in a highly structured way, which lendsitself to Internet presentation.

Of course more would be required than the bald presentationof the rules. There are a number of existing models which could be followed suchas the Restatements, produced by the American Law Institute, where thegeneral rules are supplemented by reference to other rules, legislation outsidethe Code and case law. This is a model which had been followed by recentexercises in Europe such as the UNIDROIT Principles of InternationalCommercial Contracts and Principles of European Contract Law producedby the Lando Commission for a European Contract Law. Documents of this kind,held together by hyperlinks connecting other relevant parts of the text as wellas outside sources, could provide the means by which Scots law (and indeedEnglish, UK and EC laws) could be presented on the Internet in future. Ifdrafted with sufficient clarity, or with equally clear and simple explanatorynotes, it might even help the citizen come to grips with some of the basics ofthe law.

The speaker saw a new legislature such as the ScottishParliament as having the opportunity to move away from the practices of thepast. In the Middle Ages, law was disseminated by oral proclamation at themarket-cross in major towns. Acts were accordingly brief and to the point. Printand growing literacy lead to the abandonment of the oral word and itsreplacement by the growing rows of musty tomes in the law library: unconstrainedby regular exposure to people, legislators and their draftsmen grew verbose andobscure.

Professor MacQueen saw the Internet as a kind of globalmarket-cross for the 21st century, offering lawyers the challenge ofreconsidering the way in which the law is presented. Work was already underwayin the law schools on what a Scottish code might look like. What better waycould there be for the Scottish Parliament of making an appropriately millennialfresh start and commitment to the exploitation of information technology for thebenefit of Scotland than to back these initiatives, delivering in due course arestatement and code of Scots law accessible to all, in Scotland and beyond?

The AustLII Paradigm

Following consideration of how IT might fundamentally improveaccess to law by enabling law to be better structured and presented, ProfessorIan Lloyd, Professor of Information Technology Law and Director of the Centrefor Law, Computers and Technology at the University of Strathclyde, moved fromthe theoretical to the current reality in the first of two presentations on howthe law is currently being mediated via the Internet.

The speaker concentrated on two sites, AustLII and Cornell.He began by demonstrating the functionality of the AustLII database ( has come to be seen as offering a paradigm for other jurisdictions toachieve the publication of law on the Internet. After explaining its background,aims and objectives and the history of its development, the speaker provided atour of various sections and facilities offered by AustLII concentrating on thesystem’s key features:

  • linkage between cases and statutes
  • updating facility to provide consolidated texts
  • facility to mark text.

It was, of course, the last facility which the speakerdemonstrated by reference to the fictitious (but wholly conceivable!) case ofthe Friends of Waltzing Matilda v Rolf Harris which drew the nowpredictable gasps of admiration from the audience as AustLII’s UserMarkfacility returned the text with the citations to such diverse references as the HumanRights Commission Act 1981, the cases of Val Doonican v Barry Manilow(1951) 92 CLR 587 (but sadly not Sinatra v Elvis [1999] HCA 69) as wellas the relevant section of the Girl Guides Association (New South Wales)Incorpor-ation Act 1951, all marked up and linked to their sources.

The speaker noted that Cornell (,which offers a wide range of legal materials from the Constitution and Codes toa Current Awareness Service, was organised in a different way in that it did notmaintain all data at a centralised point but accessed data distributed and heldon other servers. With Professor MacCormick’s reference to the need to accessthe law as it stood previously, it was particularly useful for the audience tosee how American Restatement of the Law allowed access to earlier statesof the legislation.

Panel Discussion

The first session concluded with a Panel Discussion, wherethe speakers were joined by Professor Eric Clive of the University of Edinburghand the Scottish Law Commission, who is currently working on Private andCriminal Codes of Scots Law, and Lilian Edwards (a senior lecturer in Law at theUniversity of Edinburgh), who had spent the autumn term visiting AustLII.Discussion ranged from the costs of providing an AustLII type facility in the UKto the roles of the law makers and lawyers in the information age.

The Deputy First Minister and Minister for Justice

Professor Alice Brown, Co-Director of the Governance ofScotland Forum and Vice-Principal of the University of Edinburgh, chaired thesecond session and introduced the keynote speaker, Jim Wallace QC MP MSP,Scotland’s Deputy First Minister and Minister for Justice. The Minister beganby emphasising the importance at the start of a new millennium of doing all thatwe can to harness the rapid advances being made by IT for the benefit of oursociety. In particular, he hoped that the conference would help develop theagenda for improving public access to legal information and the promotion ofgood legal services.

The Minister reported on various initiatives with which theScottish Executive is currently involved. Chief of these is the Digital ScotlandInitiative, which is looking at the broad picture of how digital technology isaffecting business, society, law and government. A Task Force has beenestablished, with members representing a wide range of expertise from Scotlandand beyond, to develop a shared analysis of the challenges and opportunities forScotland arising from developments in information and communications technology.From this the Scottish Executive intends to co-ordinate action to help createthe right conditions for Scotland to realise the full benefits of the digitalage.

Turning to e-commerce, the Minister referred to the reportissued last year by the Performance and Innovation Unit of the UK Cabinet Officewhich made some sixty recommendations to improve the uptake of e-commerce in theUK. Following this an e-Minister and e-envoy have been appointed to take theserecommendations forward. In Scotland, Henry McLeish, the Minister for Enterpriseand Lifelong Learning, has made the promotion of e-commerce one of his keypriorities. The Scottish Executive is involved in the development of ane-commerce strategy for Scotland along with partners in the enterprise network,Highlands and Islands Enterprise, industry bodies and other key players withinthe Scottish business, education and public sectors. All of this, the Ministerbelieved, would be encouraged by the European Internal Market Council’s aimsto abolish obstacles to the development of e-commerce in Europe and to establisha legal framework to take advantage of the internal market. The resultingE-commerce Directive would clarify the application of the principles of countryof origin and free movement of services in the information society.

Turning to the UK Electronic Communications Bill, he remindedthe audience that the Bill will provide Scottish Ministers with order-makingpowers to modify existing legislation for the purposes of authorising,facilitating or encouraging e-commerce. It will be permitted to put in place inScotland a complete package of rules, even on reserved matters, subject to theapproval of the appropriate UK Minister. He saw the legislation as likely toimprove trust in electronic trading by:

  • modernising law to recognise electronic signatures
  • modifying existing laws which require the use of paper wherever practical
  • introducing a new approval framework to encourage the development of the market for trust services.

The Minster next looked at the impact of IT on government. Hebelieved that modern government for Scotland depends on effective use of digitaltechnology, where there is tremendous potential to deliver better services tothe public. He cited the use the Registers of Scotland Executive Agency aremaking of technology to provide more efficient and effective services to theircustomers. The introduction of Registers Direct represented a quantum leapforward in terms of the ease with which information held on the main registerscan now be accessed. The Register is exploring the concept of automatedregistration of title which entails paper-free application to register certaininterests in land by electronic transfer between parties to a property sale andthe Keeper of the Registers. There are further developments, such as theautomated transfer of Stamp Duty payments to the Inland Revenue and registrationfees under consideration.

Another good example of the use of IT to achieve improved andmore efficient transfer of information is the linking of the main organisationsof criminal justice, including the eight Scottish police forces, the courts,Procurator Fiscal Service, Scottish local authorities, the Scottish CriminalRecord Office and the Driver and Vehicle Licensing Agency.

The National Archives of Scotland too is involved in aninnovative project which, over the next two years, will allow Internet access to45 participating archives providing authoritative answers to any questions onScotland’s written history and electronic images of wills or testaments from1500 to 1875. The National Archives of Scotland is a leading player in theEuropean Archive Network and it has also been used as the prototype for theproposed English and Welsh networks as well as proposed networks in NorthAmerica.

Scotland’s new Parliament is also taking full advantage ofdevelopments in IT. The new Parliament’s Web site already carried the fulltext of Bills and will contain all future Bills and Acts. The Minister lookedforward to the outcome of pilot schemes for electronic voting currently underway which was envisaged by the Representation of the People Bill currentlybefore the Westminster Parliament. The Scottish Parliament itself already usedelectronic voting. The Minister believed that the significant work beingundertaken within the Scottish Executive and to which he had referred in thecourse of his speech, confirmed that Scotland had a modern government which isitself embracing the use of digital technology.

What We Have Now: Some Existing Scottish Legal Sites

The Minister was followed by the second presentation to lookat how law is currently being made available on the Net. Focusing on Scottishsources which might constitute the building blocks for a UKILELI-type service,John Gailey, Imaging Business Manager at Advanced Recognition Ltd and member ofthe Scottish Group Committee, began by reviewing the traditional sources beforelooking at how they had been translated into cyberlaw.

Legislation was, of course, the primary source whichconcerned lawyers, but he saw this as now complicated by the existence of dualparliaments, with overlapping areas of responsibility. This heady mix wasenhanced by the availability of a further tier of primary source material in theguise of European legislation. Thankfully, all of these sources now had adigital presence on the Web, although some were more useful than others – forexample, the simple availability of materials, without any means of searching oraccessing, amounted to more or less a ‘‘dead’’ archive, which whilstvirtually free to produce and maintain was of limited usefulness.

One of the primary advantages of a digital source is thecapability to add value through access to functionality such as hypertext whichallows a term to be linked to its definition or an updated section to be linkedto the ‘audit trail’ of amending legislation. The simple addition of asearch engine to allow content to be examined provides a much more functionalsource than one which merely lists the names of Acts (most of which merely hintat their content and the breadth of their application). In this context, sourcesof legislation could be reported as follows:

Seekers of legal sources can usually benefit from the workput in by the (often unpaid) assemblers of consolidated reference pages such asthe SCL’s own resources page and more specialised items such as:

One of the more surprising problems associated with theavailability of material is the sheer quantity. The speaker recalled the wordsof Isaac Asimov, who said ‘getting information from the Web’s like getting aglass of water from Niagara Falls’. In this way, there remained an essentialchallenge for legal publishers to provide added-value materials which could beeasily digested and were user-friendly and which could be accessed rapidly andreliably.

In much the same way, it was easy to pay lip-service to theconcept of access by simply blasting megabytes of raw source material into theether. Without the benefit of a scheme of automated cross referencing andupdating such as can be provided by engines like the one used by AustLII, theWeb would merely provide dial-up access to the text of sources, rather than anaccessible form of legal resource.

While the workings of legislation may well be second natureto a trained lawyer, the speaker concluded that for Web-based legal materials tobe of any use to the man on the Castlemilk cyber-highway, it would be necessaryto make use of technology to ensure that the law is presented in a format whichis not only accessible in the context of dial-up access but also in the contextof comprehension.

Empowering the Citizen: The Benefits of Greater Access to Law

At very short notice, the Conference was extremely fortunateto secure Kaliani Lyle, Chief Executive Officer of Citizens Advice Scotland, inplace of the advertised speaker Martyn Evans, Director of the Scottish ConsumerCouncil, who was unable to attend due to an accident.

CABx see the ethos of empowering the individual as one whichis central to the aims of the service it provides. Outlining theorganisation’s work in Scotland, the speaker reported that, in 1999, one ineleven of the Scottish population (454,634) brought their problems to one of theorganisation’s 167 different service points. In that period, the organisationdealt with 432,917 new problems as well as a considerable number of ongoingissues. Of these problems, one in every three is related to welfare benefits,one in every six to consumer credit and debt, and one in ten to employment andhousing.

It is the task of the CAB to take the black letter of the lawand case law and put it into plain English for clients to help them access theirrights. Citizens Advice Scotland maintains an information system which aims todecipher the complexities of the law which is then interpreted further forclients by trained advisers. A pared down version of the System called AdviceGuide ( isnow available on the Net for direct access by clients. It is currentlyattracting about 1,500 users a month, with the most heavily accessed categoriesbeing employment, housing and welfare benefits.

However, the organisation is only too well aware that mereaccess to information is not the end of the problem. Clients come to the Bureauxnot just to gain access to information but also because they may have too much,or too little, or cannot make sense of it. The lack of accessible and usableinformation exacerbates inequality.

Client empowerment, therefore, he saw as involving more thanjust increasing access. There are structural problems within the civil justicesystem that act as barriers and clients’ advice requirements vary. Apart fromthe funding of legal advice, there can be issues of who provides the advice. Theburden of providing social welfare advice falls to the CABx as there are too fewsolicitors working in this area, with the problem compounded by limitations oflegal aid in this area.

Increasing access to law is to be welcomed but, to beeffective, it needs to be set in the context of a strategic overview of thewhole system to achieve a multi-tiered service so that clients can achieve thebest and most appropriate outcomes in terms of resolving their problems.

A Citizen’s Channel: Internet/Web TV/Digital TV Advice

The final speaker of the Second Session was Brandon Malone,of Bell & Scott WS. He had prepared a highly innovative ‘live’demonstration, especially for the Conference, of how a citizens’ advicechannel might appear on digital tv.

The speaker’s starting point was that ‘greater access tolaw is a good thing.’ He reviewed the existing sources of advice on legalrights. Currently there are barriers of cost, complexity etc to using theInternet to widen access to legal advice. Digital tv, the speaker believed,offers a practical alternative. Recent Cabinet Office studies have shown that10% of UK homes now have digital tv, and are forecasting that this will rise to47% by 2003, and to 76% by 2008.

The demonstration showed an imaginary ‘‘live’’ tvservice involving a lawyer speaking about various typical issues (divorce,employment, etc). The ‘‘live’’ image was set in frames and the speakershowed a variety of ways in which these could be filled. One way would be to setout related topics on which the inquirer could be provided with further textinformation by clicking on one of the options. Links could be provided tosources of primary law such as the proposed UKILELI project. The inclusion ofadvertising on behalf of the firm giving the advice was another suggestion. Heenvisaged such a service as running on a channel wholly devoted to thismaterial. Additional programmes which such a channel could feature might be‘phone-in shows on popular subjects, televised court rooms, documentaries onhigh profile cases, police ‘‘crimewatch’’ programmes and programmesoffering education in civi rights and duties.

Panel Discussion

The second panel session (comprising the speakers and theConference rapporteur Andrew Cubie WS, senior partner of Fyfe Ireland WS andChairman of the Independent Committee of Inquiry into Student Finance inScotland) discussed a number of issues raised from the audience These focusedchiefly on financial difficulties and pressures facing advice services and howthese difficulties might be resolved.


The final speaker was Andrew Cubie WS, who undertook the roleof Conference rapporteur. He emphasised the importance of the new Parliamentproviding law in accessible format. As part of that, he would encourageconsideration of the issues raised by Professors MacCormick and MacQueen as tothe structure and presentation of the law. The law also required to be framed ina digestible form and employ straightforward language.

He reminded the audience that intelligible access to law isnot a new issue and that Thomas Hobbes, writing some 400 years ago, hadexpressed indignation at the restrictions that existed for lay people to accessthe law. The challenge is now to make law available not in a ‘‘flat’’manner, but in a truly digestible form, and beyond that there is the‘‘latent legal market’’, offering an opportunity for those who have beensocially excluded from the law. The 430,000 annual consultations undertaken bythe Citizens’ Advice Bureau in Scotland demonstrated the substantial need forguidance and assistance. Routine legal matters can be better packaged. Lawyerscan create products. Substantial opportunities do exist for the legal professionto work with others who give advice to the benefit of individuals who havepresently limited access to sound legal advice.

If the community at large becomes more knowledgeable aboutlegal matters in general, then lawyers will require to be more responsive to thedemands put upon them, to be sharper in their approach and to consider allpossible avenues of delivering advice. It is for members of the legal professionto enhance the awareness of those who consult as to their rights and remediesand to add value. He believed the legal profession could provide a lead and hewas tremendously encouraged by the huge attendance at such a Conference on aMonday morning with attendance by senior members of the judiciary as well as awide range of practising lawyers.

In setting out some issues for the Conference to takeforward, he would encourage the support and development of UKILELI to providethe UK with access to law in a manner similar to that provided by AustLII. Hewould want to explore how this could best be taken forward swiftly in theScottish context. In connection with this, he would also encourage the freeingup of the Lord Chancellor’s Statute Law Database and encourage others also totake a generous approach to the data they held or controlled. He hoped that theDeputy Minister would see his way to accepting additional contributions to theexisting groupings looking at the application of modern technology in Scotland.Developing Professor MacQueen’s idea of a ‘‘global market-cross’’, hewould encourage as part of the goal of this conference that Scotland – throughits Parliament, its legal institutions and its lawyers – become renowned for itsaccessibility, clarity of expression and knowledge of its citizens.

John Sibbald closed the Conference by thanking all those whohad been involved, acknowleding in particular the important contribution made bythe Governance of Scotland Forum to the success of the event and the assistanceof Brandon Malone and Lindsay Adams, the Conference Manager.