Legislative Drafting Software Personal Experience of a UK

Legislative Drafting Software: Personal Experience of a UK Drafter Ronan Cormacain Consultant Legislative Counsel Oslo 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

What is legislative drafting? Turning policy into law Making good quality legislation effective clear precise constitutional gender neutral plain language

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 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

Formatting with the template (continued) schedules symbols formula tables automatic numbering dates (made, laid, coming into force) multi-lingual formats (welsh legislation) footnotes

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

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

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) Accessibility of legislation: R Cormacain “Accessing Legislation: 40 years post. Renton” (2013) 19(3) Web Journal of Current Legal Issues Rules or guidelines for drafting legislation Use of IT in legislation: R Cormacain “An Empirical Study of the Usefulness of Legislative Drafting Manuals” (2013) 1 Theory and Practice of Legislation 205 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