Monday, March 30, 2020

Fully Virtual Legislative and Parliamentary sessions coming in 2020. Forty years ahead of schedule

It goes without saying that we live in interesting times at the moment. Never could I have imagined that the world would change utterly, so rapidly...

In times like this thoughts turn immediately to those most seriously affected. Fingers crossed the measures being taken at the moment will allow us to defeat this virus soon.

When we return to "normal" it is clearly going to be a new "normal". All over the world organizations of all sorts are finding ways to function in fully virtualized environments. The word "Zoom" - already in the dictionary as a verb coming into this  - has acquired a new meaning, in record time. There has never been a more intense focus on finding ways to get things done digitally. It is no longer hyperbole to say that our futures and our lives depend on it.

Legislatures and Parliaments are not immune to this new digital impetus. All around the world Legislatures and Parliaments are exploring ways to work fully digitally. Decades ahead of when I had envisaged that they would.

These institutions face some unique challenges in making this transition. It is not as simple as using conference calls for voice votes and switching on a few video conferencing cameras. Decades and indeed centuries of precedents, statutory provisions and constitutional/charter provisions need to be complied with so that continuity of the rule of law is maintained and to ensure legal authority is preserved.

Rules of Legislative Procedure such as Mason's provide a wealth of good guidance that functions regardless of whether or not a Session is being conducted "in person" or virtually. 77 of the 99 legislative chambers in the US use Mason's as the bedrock of their chamber rules. Mason's allows for the suspension of rules and, on the face if it, this appears to provide a lot of scope for US legislative chambers/houses to adapt quickly to working in a fully virtualized environment.

However, Mason's is also clear that its rules, or the rules in a House or Senate resolution or in the joint rules of a legislature, are all ultimately limited by whatever the constitution may require.

Simply put, the Constitution rules. And this is where the difficulty may lie in some cases. Most constitutions are old documents - into the hundreds of years old. Some specifically state, for example, that legislative sessions are conducted "in person".

This has higher precedence that anything in the joint rules, the chamber specific rules or in Masons/Jeffersons/Roberts etc. So, perhaps a change to the constitution is required in states where there is a constitutional requirement for "in person" meetings?

This is of course possible in all states, but I know of no state where the constitution can be changed quickly. In some states it takes a minimum of a session to pass it, plus a referendum....All of which take time.

I am not a constitutional scholar or indeed a lawyer for that matter, but it may be that the nature of legal language comes to the rescue here. I have written before at length about how I think about law and how it is not a simple, large set of "rules". For example What is Law? and also a series of blogposts starting here.

Simply put, my view is that the open-ended nature of legal language that may appear to be a "bug" at first glance - especially if you are a software engineer seeking to create  "rules" from it - is actually law's most brilliant feature.

Perhaps the time has come - in these extraordinary times - to revisit the interpretation of the phrase "in person" meetings to include "virtual" meetings in certain circumstances. I believe a lot of groundwork already exists for this with the gradual adoption over the last few decades of digital technology from faxes to digital signatures in legally binding environments.

In one fell swoop, such an interpretation of "in person" would fully pave the way for the fully virtual legislative meeting capability in states that have "in person" language in their constitutions. It is a matter for the courts obviously, as that is where the "interpretation" function lies, at least in common law jurisdictions.

I do not mean to suggest that there is some sort of magic wand to be waved here, but I do believe that with all the dedicated, talented legal people looking at enabling virtual legislative sessions at the moment, a legal solution will be found in all states that need it.

In parallel of course, the technology has come on in leaps and bounds over the last two decades to facilitate it, once the legal framework is in place to enable it. The technology in question is my day job and has been for about thirty years. It is very exciting to be in a position to help. We have all the modules we need right now for the technology having spent decades building out digitial systems in Legislatures/Parliaments already.

Indeed, we are already working with a number of legislatures (and also with local government with PrimeGov), to extend our existing solutions to be fully virtual for legislatures and parliaments, covering chamber floors and committees. Deployment time can be as low as a matter of weeks.

For many legislatures, it is already full steam ahead towards support for virtual sessions. For those that need to make some preparatory legal framework modifications, my advice would be to do that in parallel. There is no need to wait. Do them in parallel. The time to start is now. Today.

This is all happening in my lifetime.  I never would have guessed it, but I am delighted to be part of it having spent 30 years thinking about it. The new normal is upon us.