We had the privilege of interviewing Dr. John Mark Keyes, former chief legislative counsel of Canada, chair of the Legislative Drafting Conference of the Canadian Institute for the Administration of Justice, and professor of law at the University of Ottawa, on the past and future of legislative drafting. The interview was conducted by Hudson Hollister, founder and CEO of HData and former president of the Data Coalition. This transcript has been edited for clarity.
John Mark Keyes, thank you so much for spending some time with us.
John Mark Keyes
Oh, it’s my pleasure, Hudson.
Tell us a bit about what brought you into the world of legislative drafting.
It was the world of words.
My mother was an English teacher. And so I grew up with a lot of additional instruction on how language works and the importance of using language well, and in my undergrad, I pursued a degree, sort of in English literature.
And that led very quickly into something that I thought was more of a practical application, which was the law, which is to a great extent all about words. And then that got further refined into an interest in where the words of the law come from, in terms of legislation.
I did my law degree at the University of Toronto, and then eventually found my way to Ottawa, and did a program on legislative drafting at the University of Ottawa. And then, right away, I started drafting federal legislation, first regulations, and then in bills for the government. I spent about 30 years working for the Canadian government, most of it in the Department of Justice, which has principal responsibility for drafting both the laws, the primary legislation, as well as all of the regulations as well that are made at the federal level.
And the last eight years of my career, I was the Chief Legislative Counsel, the senior manager responsible for this group of people who are drafting–and actually not just drafting, but also publishing.
And then I retired from there nine years ago. Ever since I’ve been at the University of Ottawa, teaching here, public and constitutional law, and as well, trying to generate an interest in legislative topics amongst my students, in the hopes that maybe they will take some of my more advanced courses on legislative interpretation and on legislative drafting.
It’s a labor of love, and also fundamental to democracy. I’ve got a sidebar question for you. John Mark, it seems to me that there is a pattern that is repeated on the provincial level of Departments of Justice: being responsible for regulatory drafting. Is that consistent across all the provincial governments?
All but one. It really comes out of a British tradition of centralized legislative drafting.
This goes back to the middle of the 19th century in the UK, where they established an office of parliamentary counsel.
And so it was established 150 years ago or so, with central responsibility for drafting all of the government’s legislation, and that meant it was really drafting everything that was enacted, because we don’t have a system as you have in the United States with a separate rigid separation of powers and checks and balances.
Instead, we have an executive government, that when it is a majority government, basically controls the legislative side of things as well as the executive side of things. So if you’re drafting government legislation, it’s likely going to be enacted.
This probably leads to efficiencies. The lack of separation of powers, of course, a U.S. constitutionalist might criticize, but this may lead to some efficiencies when it comes to the connection between authorizing legislation and the regulations that are promulgated under it.
In the U.S. we often have regulations that are promulgated under multiple laws in a squishy fashion, where the provenance and the authorization to draft such regs is unclear, and the reg just kind of manages to float in the penumbra of multiple laws.
Yeah, to some extent that that does exist in Canada as well.
[There is some diversity across Canada in the drafting of regulations. In Nova Scotia,] the Office of Legislative Counsel, which has a firm grip on the drafting of the government’s bills, the statutes, has nothing whatsoever to do with the regulations, the delegated legislation. That drafting responsibility is rather diffused across the whole of the Nova Scotia government.
But in many other jurisdictions, certainly in the federal jurisdiction, [it is different.]. In the province of Ontario, the drafting of the delegated legislation is also done pretty much centrally.
In theory at the federal level, the Department of Justice responsibility is simply to examine draft regulations[, and not draft them]. But that examination has largely given rise to basically drafting the regulations; if you want to get your regulation examined properly, you better have it drafted [by the Department of Justice] as well.
This must lead to better coordination between original legislation and the regulations that have been being drafted and promulgated?
Yeah, I think it does.
Certainly there’s a lot of attention given to finding the authority to make the regulation, identifying it and making sure that the wording that authorizes regulations actually covers the regulation that’s being proposed to make. There’s also scrutiny in terms of constitutional principles, particularly our Charter of Rights and Freedoms, to make sure that the delegated legislation is in conformity with those constitutional norms as well.
John Mark, tell us a bit about the technological changes that you saw during your eight years as Chief Legislative Counsel. What were the most consequential technological changes that affected the ability of drafters to draft?
Well, if I may, I’d like to actually go back further than that, when I started in the Department of Justice, or in the Canadian government in 1983. If you want to see the change, you really have to go back that far.
When I started drafting, it was a paper world: papers and pens, writing things out, giving them to secretarial people, who would then type it up and put it into some kind of a word processor. In the early 80s, word processing had arrived. But the word processors that were used were about the size of refrigerators.
You could see a line of text as you input it. And so you could play around with one line at a time. And then once it disappeared, it was done.
At that time, as a drafter, I was doing everything on paper. And yes, we did have this sense that maybe there were some possibilities in terms of digital support for what we were doing. But it wasn’t there yet.
About eight or nine years after I started, personal computers suddenly arrived in our offices, and we were no longer to simply write everything out in hand: we were to do the typing ourselves. This was a bit of an adjustment for some of the older drafters who had never really learned how to type and didn’t think that was their job.
I was, I guess, part of a newer generation, who had learned to type because I thought it was going to be important. And it sure was. I was just trying to make sure that my term papers looked good when I handed them in. But I had no idea that eventually this was going to become the way I was going to be doing all of my writing.
So I fit into that world of typing very, very easily. In the late 80s, early 90s, we were starting to do everything digitally. And initially, we were still kind of working at our offices: we go to meetings, we get instructions, we go back to the office, we do the work.
But then very quickly, we started to take the computers into the meeting rooms. They weren’t just back there in our offices.
And we had screens in front of the instructing officials. So they had two screens, one for each language version because we draft bilingually at the federal level, and then each of the two drafters would have their screens as well.
And so that made an enormous change in terms of the dynamic of drafting. Suddenly, it really sped things up. In the past you would go to a meeting, you would take notes, you would go back to the office, you would make the changes.
Now: we went to a meeting, we talked about something, and we would make the changes right away. And at the end of the meeting, there would be a draft and the instructing officials could take the draft, and they could go back and look at it. They didn’t have to wait for a few days for the drafter to come up with something. It was immediate.
This was all driven by a lot of changes in the political world. The urgency of things just seemed to get ramped up and up and up. When the politicians realized that we could actually do things faster, they started asking for things even faster.
The first time we had a huge emergency, in which we had to get a project done overnight, we somehow managed to do it. Then it started to become the norm. But of course you can’t do legislative drafting at 100 miles an hour all the time. You have to slow down, you have to take time to reflect and think about things. But in general, the whole process certainly did speed up. And the biggest factor was the technology we were using, the digitization of our world.
As this was going on in the drafting world, we were also looking at the publishing world: how do we get the text of legislation out there? In the old days, when I started, there would be a disc that would go off to the printers. And they would then use the contents and produce a hardcopy. And all that was circulated was hard copies, there was no other publication.
Suddenly, we started to realize, well, maybe we could circulate other copies, because we actually had control of the copies, because we were typing them up ourselves. Then that expanded not just into the small circle of people who are working on legislation, but more broadly, so you get things into Parliament into the House of Commons. And suddenly, there were digital copies floating around.
And then that transformed into a website that starts publishing everything that’s going on, with digital copies on the website. The whole process of creating those copies shifted from almost exclusively paper-based to one that is now pretty much exclusively digital-based. I’m not sure how many people actually look for some officially printed copy of a bill anymore. You just go to the website. If you want a hard copy, you print it yourself, right? And how many people are using hard copies anymore? They just put it on their device, and they read it in digital format.
That’s the change that was taking place in terms of the accessibility issues, because of the changes in how we were creating the document in the first place. That’s the history of our transformation from a paper-based world to an almost exclusively digital world today.
Tell us a bit about the way things stand right now in terms of digital structure for legislation. We’ve seen the adoption by some jurisdictions of XML and other structures that permit drafting to take place right in the code and then automatically result in the necessary amendatory language. Are you seeing that adopted more broadly?
I’m not plugged in to the cutting edge at the moment. It’s been eight years or nine years away from the Department of Justice, so I’m looking at things from a bit of a distance.
But I do know, there’s a lot of interest in looking at the [Data First] code side. There are some projects going on within the federal government to look at trying to see how you transform these words on paper into code, and then what you can do with the code to basically get the information–the legal information–out there.
[Data First] drafting that makes it a little easier to transform that information and get it into a usable form is certainly something that is occupying many people within the federal government today in a number of projects. I think it’s moving towards the world where as we’re writing the words, we will also be thinking about the code. And maybe to some extent, thinking about the code [while drafting] is going to influence the words themselves.
There are connections between media and content. [From Hammurabi to papyrus to Gutenberg,] the medium that has been used to express the law, as it changes, has a tremendous impact on how people think of law and what is law.
[The medium also has a tremendous impact on] access to the law; the code of Hammurabi [on a stone tablet] wasn’t accessible to a whole lot of people. That’s one of the huge things that’s changed as the media changes: the accessibility of law has gotten greater and greater and greater.
But with the accessibility of law comes changes in how we think of law. I think what’s happening now, in [discussions] of law as [digital] code, is a consideration of: what do people really want? What’s the best way to deliver legal information to people?
The reason, ultimately, why people read laws is: they don’t read them for the fun of it, they want to find an answer to some question. And so how do we provide those answers most effectively to them?
This exploration means we must take what’s in the law, and transform it into something that provides all of those answers. And that’s where I think it’s, you know, the words of the legislation or meeting the code. How do you write those words in a way that facilitates trying to transform those answers?
We’re very quickly now talking about the future – because we’re not there yet, in law-as-code. In fact, I think you’ve got to be careful about law-as-code. It’s not a magic solution for everything.
There are some things that cannot be transformed into code, because they depend on what I would generally label as discretion. They depend on judgment, or they depend on political factors. It’s pretty hard to transform politics into a computer, right? It is just too messy and too complicated. We try to do that with laws. But we don’t completely succeed in transforming it into laws that are clear and tell people everything they want to know.
There’s a lot of fuzziness around laws. And there’s a lot of discretion in laws as well. The law will take you a certain distance towards understanding what you want to understand. But at some point, you might have to ask somebody in the government to tell you something.
And that’s discretion. That’s some official making a decision. How is that decision made? There’s work going on in terms of automated decision making, as well, and artificial intelligence. That’s another piece of what’s going on here.
[First,] we’ve got the world in terms of transforming the words [of legislation] into something more usable. But we’ve also got a parallel development going on, in terms of artificial intelligence, and in terms of using it to assist in decision making, although I’m not sure that it will ever completely displace decision making …
There’s our past, present and future. Could you describe the danger that we may face if law-as-code moves away from public accessibility and general interpretability?
Well, I think one of the challenges for law-as-code is transparency to making it clear what is going on in the code, because what it produces is just answers to questions.
But often people want to examine: where, really, does this answer come from? What exactly is it based on?
But artificial [legislative] decision-making [may involve] built-in biases that are not detectable. If that decision-making is made on the basis of a whole lot of past decisions, and those decisions are rife with with biases that we really don’t want, then you’re just perpetuating all the problems that existed with that prior decision-making. So that’s a concer,n in terms of where we’re going here and making sure that there’s transparency and understanding where these decisions are coming from and how they’re being put together.
And in line with that is: how are we going to scrutinize the code? We have all sorts of elaborate processes for examining and debating the bills, and looking at the draft regulations. That’s done, of course, at a political level, by people who are elected to do these things. That’s part of our democratic structure.
But how do we bring that democratic accountability into examining the code? Are we going to need legislators who now have a programming background, and who can make some sense of all of this and understand what’s going on? I think those are some of the challenges before we move too far too far ahead.
This is good caution for those who are moving forward on law-as-code, but also inspiration that it is possible to pursue the ideals of democracy even as we implement technology to aid it and move it forward.
I think a lot of what has been done with the digitization of legislative drafting and publishing has really assisted democracy. Certainly it’s made these things far more accessible than they ever were before, which is unquestionably a good thing.
It also, I think, provided tools that we never had before. As a drafter, I really appreciate the searchability of documents. Especially if you’re working with a complex piece of legislation, you need to be able to skate around. Flipping pages, paper pages, is not going to do it. When you have digital search tools, it’s huge in terms of your ability to tie things together and make sure it’s all together.
By the same token, if you’re on the consumer end of all of this, if you’re reading the law, and it’s a digitized version, you can do the same thing with your search functions.
Building in things like hyperlinks, I think that’s something that’s coming as well. In fact, it’s here, with some versions of legislation.The state of Victoria, in Australia, have hyperlinks all over their legislation that’s online.
In fact, frankly, I think they’ve overdone it, because when you look at what’s there on your screen, it’s just hyperlinks galore. How do you read this when you’re constantly being interrupted by all of the hyperlinks?
I was talking about this with one of my classes last week, and one of the students said–rather than hyperlinks, what if you just had some kind of a pop-up, and as you hovered over the word, the pop-up would come up? It would tell you: this is a defined term, and here’s the definition. Or it would tell you: this is a cross reference to this other section, and this is what it says. So you could read it–you could read a clean version.
But then when you wanted to know what’s underlying that version, in terms of the defined terms and the cross references, you could easily access that as well. And so, you know, trying to come up with, with a digitized publication platform that we do, that would be terrific. And the state of Victoria is not there yet. So that’s clearly an example of progress, but there’s more progress to be made, I think.
Yes. Well, I think that we’ll see that progress. I think that because of the work of the foundation, you’ve laid that progress to be all the easier to pursue. And so on behalf of those that work in the legislative regulatory field, thank you. Thank you for that work that you’ve done.
And you’re very welcome, it’s a labor of love.