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 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
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 postRenton” (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