Right to legal knowledge and information as constitutive elements of good governance

1. Right to legal knowledge and information as constitutive elements of good governance Lecture in the Rovaniemi International Summer School 2003, Future of Law by Counsellor, Docent of Administrative Law Dr. Tuomas Pöysti MINISTRY OF FINANCE, FINLAND UNIVERSITY OF HELSINKI, FINLAND Right to legal knowledge and information in the good governance

2. Case KKO 2001:72 (Finnish Supreme Court) • Merger of two sport associations which legally was qualified to be the transfer of enterprise as defined in EC Directive 77/187/EEC. • X was moved as old employee to the service of the new employer. Agreed that terms, conditions and benefits according to law (in the letter of intent expression ’’the salary would not become smaller). No particular information given by the employer on the pension arrangements. Question is whether the new employer were responsible for the additional pension scheme Right to legal knowledge and information in the good governance

3. KKO 2001:72 • Finnish law was at time modified for the implementation of the Directive. • Directive establishes minimum obligations and wider transfer of benefits is a matter of Member States legislation. Directive excludes the additional, voluntary pension schemes from the scope of mandatory minimum rules. • Government bill implementing the directive stated that the intention was to implement in Finnish law the minimum obligations. Nevertheless, there was a wide understanding in the responsible Ministry and among the general population that the idea was not to weaken the protection given by law to acquired rights to additional pensions Right to legal knowledge and information in the good governance

4. KKO 2001:72 • District court and Court of Appeal held the new employer liable for the payment of the additional pension scheme of the old employer: Court of Appeal recognised the directive and reasoning in the national legislation but noticed that no discussion was held on the additional pensions when the new contract of work was signed. X had a reason to trust to continuity. • Supreme Court reversed the judgment: in Finnish law the intention was to implement the minimum standards of the directive, thus, law shall be read in line with the words of directive. Since the contract simply refers to as defined in law the contract does not give a foundation to a contract-based claim. Thus, X is not entitled to additional pension. Right to legal knowledge and information in the good governance

5. KKO 2001:72 in the perspective of legal information and communication • What did X agree and understood as being agreeing? • Which were the obligations of the other party to explain the content of law and to which extent the maxim everyone knows the law is still valid • Which had been the actual intent of the law-drafting and how it was expressed in the government bill – relation of the text to the general conceptions about law • Once again the discussion on the legal information crises arises, once again the quality of legislation and law-drafting are at the central stage Right to legal knowledge and information in the good governance

6. Legal order • Legal order is not only norms and power but information and communication. Acts of Parliament, Travaux préparatoires, cases etc. are messages and information about justice, rights and wrong, competencies, governance tools • Legislation and legal practises (legal life are processes of information and communication • The legal system as a cognitive system is structured from legal information and communication • Above-mentioned perspective to law and legal life is the point of departure for the general legal informatics as a science of law and jurisprudence Right to legal knowledge and information in the good governance

7. Publicity of legal norms • Publicity of legal norms and legal information are intrinsic and fundamental principles of Western democracy and rule of law • They are prerequisites of: • right to public and private self-determination • democracy and legitimacy • legal certainty • Normative understanding is even a particular feature of human existence, part of the dignity and integrity of human beings Right to legal knowledge and information in the good governance

8. Access to legal information- analytic dimensions • The prohibition of retro-active criminal law and the requirement for the publication of the acts (in Finland the Act on the Collection of Statutes in Finland, various EU law provisions) is only a formal point of departure. • (meta)right to legal information and communication • Meta-right to legal knowledge and cognition; comprehension of structures and general principles of justice in law and the legal communications and information • obligation of the public power to promote and secure efficient access-to and availability of legal information, comprehension and legal cognition and the quality of legislation and case law Right to legal knowledge and information in the good governance

9. New legal information and legislative policy • Quality of legislation, quality of legislative texts and law-drafting from communicational perspective • current Finnish discussion: the report of the working group of the secretary-generals of the improvement of law-drafting and its management, which identified also the communicational and linguistic problems in the law-drafting • Structures and tools of regulation and legislation • Structures and quality of legal information management and dissemination • legal information dissemination and information management are universal services or public services for which the government is responsible Right to legal knowledge and information in the good governance

10. Institutional support for the claim for new legal information policy • Institutional and legal background to this change of legal policy and legal information policy are the constitutional principles of effective rule of law, individual rights and democracy. • In the Finnish context the Act on the Openness of Government, new Constitution and the Public Administration Act provide the legal framework defining the key principles concerning new information policy • In the European Union context the Commission communications on the European Governance and the work of the European Convention , notably the draft for the Constitution for Europe Right to legal knowledge and information in the good governance

11. Quality and the optimising of the rule of law and democracy • The analyses of the legal order as information and communication and the information and communication flows in the legal life together with the idea on the legal knowledge and cognition and legal information as meta-rights and as subject for obligation of universal service open up theoretically and practically important perspectives to the functioning of the rule of law and democracy, that is, to the constitutional governance • Legal information policy and its analyses set the informational and communicational foundations and frames for constitutional governance and democracy Right to legal knowledge and information in the good governance

12. Challenges beyond principal change to universal service model • New legal information policy defined from constitutional principles and ideas of good constitutional governance and the transition towards the public universal service model is as such a far-reaching challenge and change • There are also significant additional changes: • Contextuality of law and legal cognition: law is an image and result of its history and reproduction of its time and environment. Changes in technology change the conceptions on rationality and interpretations of the principles of justice, even the principles of justice themselves change Right to legal knowledge and information in the good governance

13. Challenges of the networks and globalisation • Networks and network society • Law and legal information is encountered and is expected to be encountered in the information networks. The expectations concerning that encountering have changed, the legal sources and information services are not any longer only for the lawyers. • Globalisation and internationalisation • new pluralism and multi-layered legal order and communications • Trans-national legal space beyond traditional international treaty law Right to legal knowledge and information in the good governance

14. New public goods, legal principles and regulatory tools • New legally recognised public goods and the regulatory techniques related to them • bio-diversity, quality of environment, bio-security, information security are legal principles and international public goods to be partly produced by law and regulation • content of such principles and regulation is bound to the knowledge of various sciences and technologies • Standardisation and codes of conducts, co-regulation are vital regulatory tools. Nevertheless law cannot be entirely privatised and the access to legal information and knowledge should be guaranteed • Legal science and legal expertise must be the guardian of the optimality of constitutional governance and legal information policy Right to legal knowledge and information in the good governance

15. Example: European Constitution and Governance • Deficit of democracy and legitimacy of the Union is the result of scarce legal information, communication and the difficulties to understand EU law structures and processes • new governance principles promoted by the Commission • Convention’s work, particularly the working group on simplification and the proposed new structures in the Constitution for Europe • Comprehension of legislative and non-legislative instruments and their hierarchy, new names for European Acts, fewer and more understandable Constitutional charter • Development of consultation procedures and Eur-Lex portal as public service Right to legal knowledge and information in the good governance

16. Conclusions • Legal information and legal knowledge are subject to universal public service obligations of the government • There is a particular obligation to promote and guarantee the quality of that service • open and auditable quality policy (can in Finland be derived from section 18 of the Openness Act) • Classic information security and quality criteria help the formulation of the quality principles and standards. In addition there are the requirements of authenticity and trustworthiness • It is a task for lawyers and legal science, in particular legal informatics, to analyse and promote, in an inter-disciplinary co-operation with other sciences, the optimality of legal information and communication and thereby maintain the communicational and informational frame of the good constitutional governance. Right to legal knowledge and information in the good governance