Try our interactive demo of a drafting tool
Have a go on our interactive mock-up of a possible future tool for legislative drafting
At https://crlp-jerseyldo.github.io/ilde-mockup/ we invite you to try out our interactive mock-up of a possible future legislative drafting tool that would enable legislative drafters to mark up elements while they are drafting. The idea is that a tool would help drafters to check aspects of their drafts, as well as helping readers appreciate some key interpretation rules that are otherwise not obvious.
It uses an imaginary draft of Regulations in Jersey, made under an imaginary power in one of our Laws. So far (as a work in progress) it includes help with definitions, offences, must/not provisions, and if-then structures - all accessed by the row of buttons at the top.
Definitions - You can use the “Internal” button to ask it to highlight words that the draft has defined - you can then click on one of those words and a pop-up will appear with the actual text of the definition and a hyperlink to where it appears in the draft. We know many people are working on this long overdue feature for legislation websites (and drafting offices who use XML have a big advantage here). But the mock-up also illustrates how that could apply to definitions elsewhere - by pressing the “External” button -
in particular it catches definitions from our Interpretation Law (equivalent of Interpretation Acts in other Commonwealth countries), such as “person” and “contravene” (which readers are not pointed to otherwise),
and it also catches definitions from the Law under which the Regs would be made (its “parent” Law) - those definitions feed through into the Regs (under a rule in our Interpretation Law which is common in other Commonwealth countries too, but which we think most readers don’t spot).
Must/may - You can ask it to highlight provisions that use “must”, “must not” or “may”, which are one of the fundamental building blocks of legislation. Currently it will colour the provision and add a label showing whether it uses “must” or “may” - but see below for how we are looking to take that further.
If-then - You can use the “IFTTT” button to ask it to highlight the “if-and-or-not” structures that drafters build in to the provisions.
These are what we want people to be able to feed into a logical reasoner (such as DataLex, or our Excel spreadsheets, like this one for s1 British Nationality Act) to answer questions about how the legislation applies to any given scenario.
Again, we will work more on developing this further. But currently it shows the if-conditions (not the then-effects) and how they are connected by “and” (for necessary conditions) or “or” (for alternatives).
Offences - You can ask it to highlight provisions that create new offences, along with their penalties (which are sometimes in different provisions).
It is important for prosecutors and others to be able to see which new offences are created by each new piece of legislation, but legislation often mentions offences without creating them. So this will help readers identify actual new offences, while also helping drafters ensure they have created them correctly.
It currently highlights: - the words that create the offence (“commits an offence” is our standard now in Jersey, but other wording has been used in the past, back to our legislation in French); the words that set the penalty; and the rest of the provision that includes the words creating the offence (which might not be a comprehensive description of the offence).
It also includes other features -
“Issues” button - the tool would pick up internal cross-references and references to other legislation, and the Issues button highlights broken references with a label identifying them.
“Edit me” - in Regulations 2(3) and 3(3) you can add your own text. Currently if you start typing the first 2 letters of one of the words defined in these Regs, the mock-up will offer an auto-complete.
It is not the annoying predictive text auto-complete that drafters usually switch off - instead it will offer a choice of the definitions that use those letters.
If you pick one of those, the tool will then recognise that that is what you have done.
So if you then press the “Internal” button, it will highlight the word you have just typed in the same way it does for the other uses of the word.
If you then click on the highlighted word you have just typed, it will pop up the definition that you chose to apply when you used the autocomplete. (A fully functioning tool would also offer to autocomplete the word but mark it as not a use of the definition, such as where you define “dog” but then you mention the “Dogs Act” of another country.)
Other possible tool functions - We are still working on adapting the mock-up, and we are making PowerPoints to give non-interactive illustrations of additional features -
Repeated undefined terms - see our PowerPoint demo and explanation. Drafters rely on a principle of statutory interpretation that the same word should be read as having the same meaning, and a different word should indicate a different meaning. This applies even where those words are not defined - but we suspect many readers are unaware of this (and that drafters could do with help to follow it). We are imagining that -
a similar button could highlight all the repeated undefined words or phrases,
a pop-up could explain the rule,
and links in the pop-up could offer to search for all occurrences (including grammatical variations), and link to a statement of the rule (perhaps in a drafting office’s Drafting Manual, or in other published material).
Must/may - see our other PowerPoint demo -
In a classic case we would want separate highlighting to identify each of these, as in the demo: the person on whom the duty or prohibition is imposed; the act they must or must not do; and the words imposing it as a duty or prohibition.
We would then want that to link (as in the demo) to whatever other provision sets the consequences of breach (if the person does do what they must not do, or does not do what they must do). Sometimes that consequence is not expressed in any provision, such as for duties imposed on public bodies, where the consequence of breach is often left up to the principles of administrative law and particularly to Judicial Review.
Not all modern uses of “must” are the classic normative type first mentioned in relation to drafting by George Coode in the mid-19th century. Sometimes they are “constitutive” rather than “normative”, as in “the enforcement notice must [to be valid] include information as to the right to appeal”, or borderline such as “the person must lodge the appeal within 21 days of the decision” (where you are not in trouble for late lodging, but you just cannot demand to have your appeal heard). Even in these, the drafter still needs to have thought about a definite link to what happens if the “must” is not complied with (usually that an act/thing does not have the legal effect that it would otherwise have had).
We are also working on “may”, but (whereas “must” is now used with more discipline than its predecessor “shall” in the Commonwealth) we are finding that drafters still use “may” in a variety of senses. We are looking at the links, that ought to be made clear to readers, to the consequences if a person does (or does not) do what they “may” do. When “may” is used to give permission, the consequence is that a prohibition somewhere else is disapplied. When “may” is used to grant a power, the consequence of exercising it is usually to alter what someone else must or must not do (such as with a power to serve an enforcement notice on someone).
Mock-up, not a real tool - Please remember that, although this mock-up is interactive and being developed further, it is still just a mock-up rather than an actual working tool. The point is to illustrate what sorts of features legislative drafting offices might think of asking developers to incorporate into a real future tool.
One of the key issues will be what drafting systems any future tool would be compatible with -
whether some or all of the functions can be made to work with Word (still used by most of the smaller legislative drafting offices in the Commonwealth), or
whether they will only be available to offices that have moved to drafting in specialised XML-based editing systems instead.
Special thanks go to Laurence Diver, who set up this interactive webpage for us before he left for his new job.
For more information - about our work-stream on imagining a future legislative drafting tool, and how we are taking inspiration from the tools that developers have for writing computer code -