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Agile and legislation, paradox or happy couple?

Mariette Lokin is legal advisor at the Dutch Ministry of Finance (Tax and Customs Administration). She has been working for Dutch Government for thirty years, in particular in the field of of law making and quality of legislation. In 2019 she presented her PhD thesis: Agile Law Making: The legislator as system administrator. In this guest blog she presents her vision on the future of law making and the legislative process, from the perspective of automated execution of legislation.
Date
4 December 2019
Author
Mariette Lokin
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Complexity and technical challenges

The Netherlands is a well organized country. We are fortunate to have a strong infrastructure, virtually 100 percent internet coverage, high standards in education and health care, income benefits if you are jobless, a stable economy, and an independent judiciary. Keeping the country organized at this level requires a huge amount of rules: as of early 2019 there were nearly 10.000 regulations in force.

A large amount of these regulations has to be implemented into IT-systems, not just within governmental organizations, but also in companies that need to adhere to the rules. Applying these rules requires translating complex legal sentences into the software code that computers require to execute their tasks.

Considering the fact that most of these rules eventually end up in a digital application – either a large mainframe that handles millions of tax returns, or a webportal to request a parking permit – it is actually quite strange that this is not being taken into consideration when designing the rules.

Old fashioned process

The legislator still maintains a fairly old fashioned process, using Word and pdf documents and an amending technique that results in a sort of sudoku, and extensive explanatory notes, more designed for political debate than for providing clarity to the ‘users’ of the law. On top of this, legislators (both civil servants at ministries and members of parliament) are rarely in contact with the IT-developers that translate their laws into system specifications. Only when the laws reaches an advanced stage and the drafts can hardly be changed anymore, those who actually have to execute the rules are involved in the process for a feasibility test. Media reports and parliamentary debates on derailed IT-projects within government indicate that this way of working hardly leads to optimal results…

Agile law making?

Logically, the question arises whether this can’t be done in some other way. Considering the distance between legislators and technicians, the solution can paradoxically be found in an unexpected area: system- and software development itself! Over the past few decades these fields of expertise have invested heavily in joining the various disciplines required to develop a system or application, and in the required cyclical or iterative ways of working. Why not extend this agile approach to the legislative process?

LegOps

In my PhD thesis ‘Agile legislation, the legislator as system administrator’ (in Dutch with English summary) I described how to do just that. I was – amongst others – inspired by the book ‘Scrum in Actie (Scrum in action (in Dutch)) that sets out to make agile tangible and practical outside the field of software and systems development.

The DevOps approach, that focuses on closer cooperation between developers and ops specialists, offered additional insights. Fusing these insights into a single approach led to what I call LegOps: the entire chain, from design of legislation to implementation and automated execution (operations), united in a single cross-functional approach. The continuous LegOps loop is represented in the figure below.

LegOps

Naturally this also requires the appropriate support: a tool chain of applications tailored to the activities in each step, which deliver a product that can be passed on (preferably automated) to the next step in the chain. This increases efficiency and reduces the risk of errors.

Worlds apart

It will take some time for Dutch government to widely embrace LegOps. It is not just a question of the right tools but it also requires organizational changes (at ministries and in parliament alike), specific education, and a change in culture. The worlds of policy making and legislation on the one hand, and execution on the other hand are often still far apart, both mentally and physically.

However, there are already a number of concrete examples that show it is possible. The Netherlands Tax & Customs Administration has set up an Agile Law Execution Factory, containing parts of the aforementioned tool chain and cross-functional cooperation between fiscal lawyers and IT-developers. Their valuable experiences will hopefully clear the path for legislators to join in the process. When they do so, agile and legislation will no longer be a paradox, but a happy couple!

Mariette Lokin
Strategisch adviseur bij Douane Nederland