Legislative Drafting Software: - PowerPoint Presentation

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Legislative Drafting Software: Personal Experience of a UK Drafter

Ronan Cormacain

Consultant Legislative Counsel

Oslo 22 October 2015Slide2

Overview

Part 1 - Nature of legislative drafting

Part 2 - Drafting software in the UK

Part 3 - Elements of an ideal systemSlide3

Part 1 Legislative DraftingSlide4

Turning policy into lawMaking good quality legislation

effective

clear

precise

constitutional

gender neutralplain languagefits with existing legislation(see further Xanthaki)

What is legislative drafting?Slide5

Gender neutral question

Ombudsman

or

OmbudspersonSlide6

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 lawSlide7

Drafting within the broader legislative process

Centralised or decentralised drafting?

Laws drafted by:

specialist drafters

general lawyers, or

experts in the subject areaSystem designed by legislature or system designed by executive?Slide8

Stages within legislative process

policy development

consultation

enactment

publication

reviewDrafting legislation may come in at any pointSlide9

Part 2 - Drafting Software

My software

UK software for secondary legislation

Old Northern Ireland software for primary legislation

New NI software for primary legislationSlide10

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 numberingJob numbers - immutable, aid to organisation, cross referencesSlide11

examples of my programSlide12

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 legislationExtended system for formattingCustom tool bars, menus and short cut keys

200 page manualSlide13

Formatting with the template

different types of secondary legislation

different types of headings

divisions of statute

divisions of individual clauses

inserted text for amendmentssignatures

enacting words

preambles

definitionsSlide14

Formatting with the template (continued)

schedules

symbols

formula

tables

automatic numberingdates (made, laid, coming into force)

multi-lingual formats (welsh legislation)

footnotes

table of contents

explanatory notesSlide15

Example of formatted template legislation

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

Example of the actual programSlide16

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 textFormatting and short-cutsProblems with moving from drafted legislation to published legislationSlide17

New program for NI legislation

Disclaimer: I have never used it!

Company = Propylon

Program = Legislative Workbench (customised version)

Uses Open Office

XML basedFirst drafts and progress of legislation through the legislatureSlide18

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 amendmentsSlide19

Sample of formatting tools with workbench

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Part 3 - Elements of (an) Ideal System

Subjective

Non-comprehensiveSlide21

What are elements of ideal software program?

Accessibility of existing legislation

Interoperability

Flexibility (no dogmatic rules)

Formatting tools

Numbering

Automatic text amendments

Precedents

Creativity - phronesis

User involvement

Sharing and confidentiality

Ease of use

Data conversionSlide22

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 amendmentsResult = bad law

Ability to search for related terms and concepts

Example: - Creating a new Commission, powers of existing CommissionsSlide23

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

Each copy / paste or file transfer increases risk of mistakes - NI exampleSlide24

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 2007Software should be able to produce authoritative version of this law at all points in timeSlide25

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”Slide26

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 = badSlide27

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 caseSlide28

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 proofnot capable of being destroyed by bad copy / pasteSlide29

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)Slide30

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.”Slide31

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 oneSlide32

7. Precedents - continued

Standard clauses used in lots of legislation. For example:

Creation of offences

Penalties

Establishing a body

Appeal proceduresService of noticesSaves time to re-use these

Familiar to usersSlide33

8. Creativity - phronesis

Phronesis - practical application of wisdom

Use your brain

Precedents direct your mind to work in pre-set manner

They:

force you to use a particular solutionstifle ability to come up with solutions tailored directly to the problemSlide34

9. Involvement of users

Users have a good idea of what they need

Consider users at all levels

policy makers

drafters

politiciansofficials in the legislatureprinters

citizens

But don’t simply replicate existing processesSlide35

10. Confidentiality

Ability to restrict access to draft legislation

Ability to share with those who need to see it

Ability to jointly work on BillsSlide36

11. Ease of use

Intuitive commands, macros, shortcuts

For example, following a hierarchy:

Part headings

chapter headings

cross headingssection headingsInstruction manualsSlide37

12. Data conversion

If you move to a new system, need to be able to convert old legislation to the new system.Slide38

Conclusion

Drafting not reducible to immutable rules

Drafters require:

technical knowledge + creativity = phronesis

Guides / suggestions helpful

Rigid rules aren’tSlide39

Further reading

Phronetic legislative drafting:

H Xanthaki

Drafting Legislation: Art and Technology for Rules of Regulation

(Hart Publishing 2014)

Rules or guidelines for drafting legislationR 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