The text of legislation constantly shifts as it is amended, repealed or lapsed over time by later legislation. How is this done? And, how does this relate to the Rule of Law?
Fundamental principle crisis of the Rule of Law: Publish the law
The Rule of Law rests on a number of presumptions, one of which is the presumption that we all know the law. This presumption, in turn, is the basis of one of the most fundamental principles of the Rule of Law, which is that law must be published.
The principle that law must be published, in turn again, implies that mechanisms be developed, maintained and used to ensure legislation is published in a manner, form and language that is accessible to all.
Primary mechanisms for compiling and publishing legislation that satisfies the principle of the Rule of Law that law be published
The primary mechanisms for ensuring that we all have access to the law, in the modern age at least, is to publish it in the official Government Gazette, and then to ensure the public has ongoing access to the Gazettes.
The anomaly: No mechanisms for the publication of amended legislation
Amending legislation is itself nothing other than original legislation, and therefore it is also subject to the same requirements of the Rule of Law that it be published, and that institutional mechanisms be developed, followed and used that are able to satisfy that requirement that legislation be published.
However, when it comes to amended legislation – original legislation that has been amended by later original legislation – the story is rather different.
The only mechanism available and used to satisfy the requirements of the principle of the Rule of Law that law be published in relation to amended legislation, is that of ensuring the original and the amending legislation containing amendment instructions, is published, so the public can work out what the amended legislation says.
There is no requirement that amended legislation per se be published.
The problem of running with the presumption that we all know the law, while not publishing amended legislation, should be self-evident in a day and age where legislation is long, complicated and frequently amended.
This has been partly overcome by the commercialization of the production and sale of amended legislation by the great legislation publishing houses, but as will be seen below, this has its own detriments relating to costs and availability of amending legislation, and there really is no real solution in sight.
Focus of the eROL Project
The primary focus of the eROL Project is to understand the mechanisms available to ensure basic principles of the Rule of Law are complied with, and where these are deficient, to develop information systems and databases, and tools of application and analysis as mechanisms to comply with the fundamental principles of the Rule of Law.
From this perspective, it is of fundamental concern that original legislation is published but amended legislation is not, and the focus of the eROL Project is the development of appropriate mechanisms and tools required for the compilation and publication of amended legislation.
A bit of history on publication of amending legislation and amended legislation
The age of law clerks
The task of creating amended versions of legislation used to fall on the shoulders of law clerks who would word for word, punctuation mark by punctuation mark, paragraph by paragraph, indent by indent, follow the instructions contained in amending legislation, to ensure that the product of their work – amended legislation – was the letter of the law.
Amending legislation is and always has been quite extraordinarily precise in its instructions as to what exact change must be made to such things as the wording, punctuation and paragraphing of legislation to be amended. And, given that a piece of amending legislation is no less a piece of legislation than original unamended legislation, its particularized instructions have to be obeyed just as much as any other piece of legislation. And, in the age of the law clerk, it was their exact following of instructions in amending legilsation that created the integrity of amended versions of legislation that they produced.
The age of commercialization of amending legislation
These days, of course, creating amended versions of legislation has moved from the shoulders of law clerks to what are now generally called “editors” of legislation employed by the commercial legislation publishing houses we all know – such as Butterworths, Jutastat, Lexis Nexus, and Sabinet – who then compiled and published the amended versions of legislation. In doing so, their objective is of course to ensure their amended versions of legislation have an integrity to the precise instructions of the legislature as contained in the amending legislation, so that their amended legislation is taken as reflecting the letter of the law in black and white, no less that it did in the age of law clerks.
What is interesting, apropos the Rule of Law’s requirement that legislation be published, is that as commercial legislation publishers’ hegemony as sole providers of original and amended legislation grew, they over time largely stopped publishing the full text of amending legislation whose substantive content did not deal with anything other than amendments it made to other legislation, and they ended up publishing only amended legislation in its version as last amended.
One of the problems that emerged from this, is that it became impossible to double check whether amending legislation’s instructions were clear, accurate and concise enough to follow, or whether the commercial legislation publishers had followed those instructions, or even whether they had interpreted them differently to others in coming to their version of amended legislation.
The age of NGOs and free access to online publication of amending legislation
More recently, over the last decade or so, the burden of creating amended versions of legislation has been increasingly taken up by non-government organizations such as SAFLII and Open Gazettes (OG) who have begun publishing amended legislation, in the name of servicing the needs of a public who cannot afford the massive subscription fees charged by commercial legislation publishers. These NGOs have largely provided access to original versions of legislation even amending legislation, and are increasingly providing access to amended versions of legislation in online electronic format, on a free to access opensource basis. As a result, both amended and amending legislation is much more freely available and at little to no cost, online, obtainable by way of a simple Google or site search.
Today: A new ingredient in the mix
The new ingredient to the mix today is the endemic incompetence by drafters of drafting amended legislation that when the amendments are effected, provides certainty as to what the letter of the law actually is.
Examples are, the drafting of and amending Act that amends an already repealed Act. Or, the amendment of the wrong version of the text of an Act. Or, an amending Act that in one section amends the wording of an Act, but that in a later section amends the section again as it if had the wording as it stood, unamended. These kind of problems crop up in about 30% of amending Acts, and of course where an amended Act is amended 10, 20 or more times by different amending Act, the resultant gibberish becomes of real concern to anyone who knows the Rule of Law requires clarity and certainty of what the law is.
Add to the above failures in properly drafting amending legislation, there is the incapacity of the legislature and administration and their advisors to pick up such errors, and the consequent inability of commercial houses and NGOs to apply instructions in amending legislation to create amended legislation that has the look and flavour of the letter of the law.
In these circumstances, the commercial publishers are unable to produce a product – which is amended legislation – that has integrity to the wishes of the legislature because those wishes do not emerge from simply applying instructions in amending legislation. And if they do attempt to produce a final product, that rests on their uncertain best-guess as to what the intentions of the legislature were.
Amended legislation and the Rule of Law
In a day and age where amending legislation is riddled with drafting and other errors, the Rule of Law, and its principle that law be published, is not served by leaving the public to work out the letter of the law themselves, and is definitely not served by the publication of amended legislation that depends on the best-guess by the compiler of that amended version as to the intention of the legislature.
The crisis today
The counter-balance to the hegemony of commercial publishers over what the letter of amended legislation was, and the limited access by the public to those very expensive databases of legislation, has been the increasing availability of electronic, online, free to access original and amended legislation put out by NGOs.
However, in circumstances where amending legislation is bedeviled by bad drafting that allows various interpretations of the intention of the legislature as reflected in amending legislation, there has been a proliferation of different versions of the same amended legislation, all available by Googling online, to such an extent that the letter of the law is being lost, wholesale.
To make matters worse the legal profession, whose duty it is to know the letter of the law above all others, seems oblivious of these problems, and many take whatever version of legislation they can afford via commercial publishers, or by simply Googling, as the letter of the law, unaware that it has often been sanitized of its grey areas by best-guess compilers of legislation.
As one attorney said to me after agreeing that amended legislation he was depending on was thus flawed, “If I walk into a courtroom with [insert name of publisher] under my arm, the Judge will know, that is the law, so why should I persuade the judge and other Council otherwise?”?
Solution to compiling amended legislation that reflects the letter of the law?
A number of opportunities to intervene present themselves to prevent amending legislation from putting the letter of law in amended legislation at risk.
One of the first would surely be to ensure drafters of amending legislation have skills and resources to draft text that is clear, concise and accurate as to what the letter of the law in the amended text should be.
Another point of intervention would be to ensure that the legislatures’ law advisors pick up the failure of drafters to set out how the letter of the law should be as amended, and refer the draft amending legislation back to the legislature.
An even later solution would be that the public pick up drafting problems when final drafts of amending legislation are put out for their comment.
That these solutions are not being implemented reflects a general failure of the mechanics of the rule of law all along the way to amending legislation becoming final law. And of course by the time a final version of flawed amending legislation is published, the rule of law has already been failed.
eROL Project solutions
The crux of the problem in finalizing amended legislation as the letter of the law by applying instructions in a piece of amending legislation to legislation to be amended, where amending legislation is fraught with errors, is that it forces a choice between one of three solutions – firstly to follow the instructions and end up with an amended version of the amended legislation that is gibberish, or secondly to read into the amending legislation’s instructions that which you imagine the legislature intended, or thirdly to not amend the legislation where instructions cannot be carried out or result in nonsense.
There is a fourth solution, one which informs the eROL Project, which is to ensure that the instructions of the amending legislation can be exactly followed, through utilising an extended key to amendment marks in the text of the amended legislation to indicate errors of insertion and omission made by the amending legislation, such that the reader understands the problems in the amending legislation, and if they want to, make their own choice as to what the intention of the legislature may have been, and what the import of the amended legislation is, or even choose to ignore the amendment because it is gibberish.
Should extending the key to amendment marks in the amended legislation work – and all our evidence is that it does – then the next logical mechanism in the history of mechanisms used to publish original and amended legislation in satisfaction of the principle of the Rule of Law Principle that law be published, will be its publication online, entirely by computer algorithm, made available free and without charge, in secure copy.
This is the objective and direction of the eROL Project in relation to the Principle of the Rule of Law that law must be published.
In relation to other of the numerous Principles of the Rule of Law, the LegalB and its eROL Project has and continues to develop unique solutions relating to mechanisms to ensure those principles are realised and to develop Rule of Law Standards for the implementation of those mechanisms.