In a time rapidly retreating into the past, I flirted with the idea of becoming an archivist and devoted thought to the nature of records, their legal status, and how they reflect reality. I was recently reminded of this when I heard the opinion that the official versions of legislation should no longer be published in annual volumes with amendments and periodic revisions as they are now. Instead it was proposed that a yearly annual revision be published as the official version with annotations indicating amendments as a way to simplify the process of research and to make the laws more accurately reflect the experience of people subject to the law.
I’ve been thinking about this idea since and come to the conclusion that while it makes sense from the perspective of the public and more closely reflects the unofficial versions of the law on services such as CanLII or in print consolidations like practitioners’ criminal codes that make accessing the law simpler, it would increase the distance between the laws and the legislative process that created them, making them worse records.
In my studies, we discussed the difference between documents that record an act and documents that are binding when they are somehow signed, endorsed, sealed, notarized, or otherwise made official. A marriage is an example of the former: you are married because you made an oath, not because you signed the register. The register documents the marriage. I have been told that proclamation of regulations are an example of the later: the endorsement of the document brings it into force, though I was disappointed to learn there is not an official proclaimer of regulations one could go see read regulations aloud in full, preferably in a fancy hat.
Legislation becomes law through many processes, and the system of publishing those laws evolved as a way to express the process of legislating and to record that it had been followed. Hansard records the discussions in parliament verbatim. Interim bills are published as they change through discussion at set stages. Annual statute volumes record the actual bills that were passed. This creates a labyrinth of documentation to navigate for any complex matter where legislative intent is important, but it limits the ability of legislators to capriciously enact laws.
The need for proper recording of government actions is well illustrated by the recent news stories in British Columbia and Ontario relating to the deletion of government records. In those cases there was limited oversight of how governmental records were retained, which led to opaque decision making and limited ability to comply with access to information legislation. The reason there is so much official recording of the legislative process is to limit governments’ ability to govern in this manner.
Publicly available records of parliamentary process are important ways to ensure that proper procedure has been followed over long periods of time. As preferred technologies, budgetary and space restraints, and the times have changed there is a continued shift to online presentation of this information, but structurally it remains unchanged (and I have found often easier to navigate conceptually in print).
I wonder about the recent decision of the Alberta government to discontinue the print publication of Hansard, as Shaunna Mireau reported in December. This means that there may be limited ability to ensure that there aren’t changes made to the record over time. And as the Government of Alberta hasn’t made the online version official, it limits the public’s access to official records of how they are governed. The impermanence of online information creates the desire to create programs like the SCOTUS Servo Twitter account, which notifies followers when the online Supreme Court of the United States decisions are changed.
I have mentioned this topic to several people, and the general consensus is that the first step to make legislative information more accessible would be to have it written in plain language. I agree with this priority, but based on my experience explaining the system to students, lawyers, and the public, I think the ways the laws are published is confusing and creates barriers to access. Changing the way the law is published wouldn’t be an inconsequential way to improve intelligibility.
That said, we need to understand that the current system was not designed as a way to navigate the law, rather it was developed over time as a system of records to make sure governments are following proper procedure. I would argue that the main issue is not just the state of the primary law, but lack of access to the commentary and synthesized legal information required to mediate between the legislative records and people looking for information.
Thank you to Carolyn Petrie who kindly read over this article to confirm my memory of archival theory.