During any respectable contract negotiation, the party 'holding the pen' produces a mark-up or "redline" of each draft of the contract showing the changes it has accepted so far from the previous version. In fact, it's considered offensive and sneaky not to show those changes. It's as if you're hiding something and don't want to make it easy for the other side to understand the deal they're being asked to sign up to.
Not so for the people drafting our laws and regulations. No. While they have their own internal mark-up of how a piece of legislation is being amended from time to time, they keep it to themselves and only use it for the purpose of writing up an amending 'statutory instrument' that shows only the change and where it is supposed to be plugged into the original. Nuts, unless of course you're still writing with a goose feather, or you're the one proposing the changes and you want to slow your opponents down by making them reverse-engineer what the changes looks like in context. Or you're one of the legal publishers everyone is forced to pay in order to get an up-to-date version showing all the changes once they are passed, since not even the government's own legal publishing unit has the resources to keep up-to-date with how all our laws have changed.
I am not the first to complain about this, as I pointed out in 2009 in the context of the Free Legal Web initiative, which you can now see is defunct. Dragged under the waves by the combined weight of institutional inertia, investor scepticism and despair... but I'll leave it to Nick Holmes to tell that story.
And yet, in true Terminator fashion, this won't die. Yesterday, we were treated to a presentation on the new OpenLaws initiative to "make legislation, case law and legal literature more accessible" (please, take the survey).
It's thought that OpenLaws might benefit from including European law. Certainly it brings European cash, which is smart. But if there's one institution committed to less transparency than the UK Parliament, it's the European Union. You'll see that I've previously considered launching a quest to find the source of European law, but abandoned the idea immediately. Anyone who's tried to keep track of the European Commission amendments to draft directives and regulations as they ooze their way through the European "ordinary legislative procedure" quagmire will understand the true value of the lobbyist. I can't imagine sunlight ever falling on that process.
But I may be wrong. And it could well be that the OpenLaws' social media tools concentrate enough rage against the EU machine that transparency will be introduced. In the meantime, we'll have access to case law, articles, commentary and unofficial redlines of legislative amendments, even if we can't shake the uneasy feeling that only a few officials fully understand what our Parliaments are churning out.
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