Should law which results in the creation of new public administrative systems receive different parliamentary scrutiny from law which doesn’t?
That’s the question raised in a recent blog post by Gordon Guthrie which caught my eye for a number of reasons, not least a typically thought provoking recent conversation with John Sheridan.
As so often, apparently simple questions quickly get complicated when you dig into them a bit, and the first complication is to work out what question this special scrutiny is intended to answer. As a first approximation, there are three very different dimensions to this:
How law is translated into code
How law is translated into systems
What role legislative scrutiny has in improving the way in which the first two are done.
Law and code
On the surface, law doesn’t look much like code. Despite heroic efforts by parliamentary counsel in recent years, it mostly looks like arcane wordplay. Looking just a little below the surface, though, patterns start to emerge which look intriguingly like code. Data elements are defined. Conditions are identified and tested for. The test leads execution down distinctive paths. A single text is unlikely to be self-contained but will refer to and draw on other legislative elements – calling functions if you will.
But there is a deeper level still where the analogy breaks down again. The compiler or interpreter is not immediately deterministic – it can take years and many levels of the judicial system to work out the correct output from given inputs. Particularly, but not only, in a common law system, many functions are called by interpretation without it ever being explicit that they are being called at all. The idea that law can be some kind of pseudo code is attractive but insubstantial.1
That’s not to say that there is no connection at all. As one example, Richard Pope suggested a few years ago that there might be scope for using software testing techniques to provide some insight into whether regulations are being applied. More generally, there are many contexts where rules defined in law need to become rules applied in practice, and rules defined in code will almost always be a vital intermediate step.
Law and systems
Law may be a necessary component of an administrative system, but it is never a sufficient one. Data needs to be collected, cases need to be managed, help needs to be offered, processes and roles need to be understood, edge cases need to be identified, transitional arrangements need to be put in place – and the list goes on. In the implementation of a legal change, the capturing of the legal element itself is likely to be one of the smaller and more straightforward aspects of what needs to be done. That doesn’t mean that the project within which such a change is embedded will be small or straightforward – and government is littered with examples of projects which are anything but. It does though suggest that the extent of legislative change may not be the best indicator and certainly isn’t the only indicator of the level of risk in developing or redeveloping a system.
Law is the responsibility of legislators. They are both the primary decision makers about what the law should be and the primary means by which the executive is held to account for its implementation and application.2 Legislative debate is normally strongly focused on the merits of ideas and policies; there is rarely much attention given to the practical questions of implementation, partly because that is rarely specified within the legislation, partly because there is limited scope for preliminary work to have been considered during its passage,3 and partly because that doesn’t tend to be what legislators focus on.
The result is that, as things currently work, legislative approval almost necessarily precedes any point at which it is possible to assess the likelihood of successful delivery. It’s certainly possible to see a model in which legislatures took a more active and more structured role in monitoring whether what was being developed had the characteristics of success, but however that were to work, it wouldn’t be a fundamentally legislative role. So perhaps the question is less whether legislatures should do more of this, and more whether there is a shortfall in the external challenge and oversight of programme management, and if so whether that shortfall is best addressed by legislators.4
Back to code
I remain strongly of the view that thinking about law as code (or perhaps better, law as system) prompts interesting ideas and insights. At a more mundane level, it can prompt attention to language being used not just not in line with its natural meaning, but in flat contradiction to it. But that’s not because law is code; it’s because the parallels are strong enough and the differences clear enough that the cross-fertilisation of ideas is useful. The greater engagement of legislators with that debate might have some very interesting consequences.
- Though great efforts have been made in recent years to make legislation both linguistically and structurally more transparent than it had been. ↩
- That sentence rides roughshod over vast tracts of constitutional theory and practice, but naïve oversimplification seems the simplest way through. ↩
- In the Westminster parliament, this is governed by Annex 2.4 of Managing Public Money, which sets strict limits on what can be spent on a new service before the passage of the relevant legislation is complete. ↩
- My point here is not that legislators are necessarily the wrong answer; it is that they are not automatically the right one. ↩