Legislative Drafting Software: Personal

Experience of a UK DrafterRonan Cormacain

Consultant Legislative CounselOslo 22 October 2015

Overview

Part 1 - Nature of legislative drafting

Part 2 - Drafting software in the UK

Part 3 - Elements of an ideal system

Part 1 Legislative Drafting

Turning policy into law

Making good quality legislation

effective

clear

precise

constitutional

gender neutral

plain language

fits with existing legislation

(see further Xanthaki)

What is legislative drafting?

Gender neutral question

Ombudsman

or

Ombudsperson

The nature of legislative drafting

Art

Science

Phronesis - the application of practical wisdom

Act = a law, a piece of (primary) legislation

Bill = an Act before it becomes a law

Drafting within the broader legislative process

Centralised or decentralised drafting?

Laws drafted by:

specialist drafters

general lawyers, or

experts in the subject area

System designed by legislature or system designed by executive?

Stages within legislative process

1. policy development

2. consultation

3. enactment

4. publication

5. review

Drafting legislation may come in at any point

Part 2 - Drafting Software

1. My software

2. UK software for secondary legislation

3. Old Northern Ireland software for primary legislation

4. New NI software for primary legislation

Software I use for drafting

Microsoft word

Single document

Macros - styles for Part headings, Chapter headings, cross headings, section headings

Auto-correct - for repeated phrases (csp = corporate services provider)

Table of contents - picking up headings and converting them to table of contents, automatic numbering

Job numbers - immutable, aid to organisation, cross references

examples of my program

UK system for drafting secondary legislation

“SI/SR Template”

(statutory instrument / statutory rule)

Official government software package

Microsoft word based

Various templates for different types of secondary legislation

Extended system for formatting

Custom tool bars, menus and short cut keys

200 page manual

Formatting with the template

different types of secondary legislation

different types of headings

divisions of statute

divisions of individual clauses

inserted text for amendments

signatures

enacting words

preambles

definitions

Formatting with the template (continued)

schedules

symbols

formula

tables

automatic numbering

dates (made, laid, coming into force)

multi-lingual formats (welsh legislation)

footnotes

table of contents

explanatory notes

Example of formatted template legislation

http://www.legislation.gov.uk/uksi/2015/1678/pdfs/uksi_20151678_en.pdf

Example of the actual program

Old program for Northern Ireland legislation

Word based

Each section saved as separate file

job number system

automatic but cumbersome cross referencing

awkward to organise the text

Formatting and short-cuts

Problems with moving from drafted legislation to published legislation

New program for NI legislation

Disclaimer: I have never used it!

Company = Propylon

Program = Legislative Workbench (customised version)

Uses Open Office

XML based

First drafts and progress of legislation through the legislature

Functions of Legislative Workbench

Cross referencing

Automatic numbering

Private and shared drafts of Bills

Ability to create standardised / repeated clauses

Automatic creation of instructions for amendments

Sample of formatting tools with workbench

Part 3 - Elements of (an) Ideal System

Subjective

Non-comprehensive

What are elements of ideal software program?

1. Accessibility of existing legislation

2. Interoperability

3. Flexibility (no dogmatic rules)

4. Formatting tools

5. Numbering

6. Automatic text amendments

7. Precedents

8. Creativity - phronesis

9. User involvement

10.Sharing and confidentiality

11.Ease of use

12.Data conversion

1. Accessibility of existing legislative database

Drafter needs to know what the existing law is before trying to change it

Example:

Law A made in 2000

Law B amends it in 2005

Law C repeals and re-enacts in 2009 BUT fails to note the 2005 amendments

Result = bad law

Ability to search for related terms and concepts

Example: - Creating a new Commission, powers of existing Commissions

2. Interoperability

Stage 1 - Drafter producing the draft ready for introduction

Stage 2 - Bill goes through legislature with many amendments

Stage 3 - Final version of Bill is enacted

Stage 4 - Hard copy and online publishing

Stage 5 - Interaction with existing electronic statute book

All stages should use the same file and be fully integrated.

Each copy / paste or file transfer increases risk of mistakes - NI example

2. Interoperability - continued

Ability to produce consolidated legislation

Law A enacted in 2000

Law B amends it in 2002

Law C amends it in 2005 (only partly in force)

Law D repeals parts of it in 2007

Software should be able to produce authoritative version of this law at all points in time

3. No dogmatic rules

Rigid rules and formats to follow = bad

Original text: “A person who is guilty of the offence of theft is liable to 5 years imprisonment”

New text: “A person who is guilty of the offence of theft is liable to 10 years imprisonment”

Option 1: For “5” substitute “10”

Option 2: for “theft is liable to 5 years imprisonment” substitute “theft is liable to 10 years imprisonment”

3. No dogmatic rules - continued

Example:

Normally - transitional provisions at the end

In some cases they should go at start

(transfer of licences in newly privatised industry)

Suggestions = good. Commands = bad

3. No dogmatic rules - continued

Example: Gender neutral drafting

a person NOT a man / he

But, old laws with lots of “he” and “a man”

Inserting “person” in could cause confusion for readers

Therefore, don’t follow rule in this case

4. Formatting tools

Click a button to say “this is a section heading”

Text will then automatically be in the right format (font size and type, indentations, line spaces, punctuation, widow/orphan control)

Same formatting tools for every other part of the legislation

Indestructibility of formatting

idiot proof

not capable of being destroyed by bad copy / paste

5. Numbering

Automatic numbering and cross referencing

If section X refers to section Y, then it will always refer to Y, no matter how many times Y changes places

Same point with subsections, so if section X(A) refers to section Y(B), then it will always point to Y(B)

6. Automatic text amendments

For when Bill passes through legislature

Original text

New text

Automatically generate the instruction to get from original text to new text

Example: I want new text to read “A person may purchase a handgun if they are a citizen and have no criminal convictions.”

Program should automatically generate the following amendment:

On page 1, line 10, after “citizen” insert “and have no criminal convictions.”

7. Precedents

No point in re-inventing the wheel

If another law covers the same point that you want to cover, then use it.

“An individual guilty of an offence under this section is liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine (or both);

(b)on summary conviction, to imprisonment for a term not exceeding 12 months or a fine (or both).”

Use the standard clause, no need to waste time on a new one

7. Precedents - continued

Standard clauses used in lots of legislation. For example:

Creation of offences

Penalties

Establishing a body

Appeal procedures

Service of notices

Saves time to re-use these

Familiar to users

8. Creativity - phronesis

Phronesis - practical application of wisdom

Use your brain

Precedents direct your mind to work in pre-set manner

They:

A.force you to use a particular solution

B.stifle ability to come up with solutions tailored directly to the problem

9. Involvement of users

Users have a good idea of what they need

Consider users at all levels

policy makers

drafters

politicians

officials in the legislature

printers

citizens

But don’t simply replicate existing processes

10. Confidentiality

Ability to restrict access to draft legislation

Ability to share with those who need to see it

Ability to jointly work on Bills

11. Ease of use

Intuitive commands, macros, shortcuts

For example, following a hierarchy:

Part headings

chapter headings

cross headings

section headings

Instruction manuals

12. Data conversion

If you move to a new system, need to be able to convert old legislation to the new system.

Conclusion

Drafting not reducible to immutable rules

Drafters require:

technical knowledge + creativity = phronesis

Guides / suggestions helpful

Rigid rules aren’t

Further reading

Phronetic legislative drafting:

H Xanthaki Drafting Legislation: Art and Technology for Rules of Regulation (Hart Publishing 2014)

Rules or guidelines for drafting legislation

R Cormacain “An Empirical Study of the Usefulness of Legislative Drafting Manuals” (2013) 1 Theory and Practice of Legislation 205

Accessibility of legislation:

R Cormacain “Accessing Legislation: 40 years post-Renton” (2013) 19(3) Web Journal of Current Legal Issues

Use of IT in legislation:

W Voermans “Free the Legislative Process of its Paper Chains: IT inspired Redesign of the Legislative Procedure Cycle” (2012) (1) The Loophole 56

E Hicks “Implementing Legislation Systems - Consideration and Options” (2012) (1) The Loophole 76