Here’s a little story unfolding in front of our eyes. The starting point is Helen Lippell being on the receiving end of a poor experience:

@WHSmithcouk Hi, I had a frustrating experience at yr Victoria Stn shop. 4 staff stacking chocolate bars while big queue waiting

about 1 hour ago via webReplyRetweetFavorite

@octodude

Helen Lippell

Note that that’s directly addressed to @WHsmithcouk so wouldn’t ordinarily be visible except to the intersection of their followers. It seems a safe bet that, to a rough approximation, that’s nobody.

Back comes the reply. Whoever is behind @WHSmithcouk is apparently unable to take note of feedback given on twitter and do anything useful with it. How foolish their customers are who do not know that such messages should be emailed instead.

@octodude please send your complaint to our team at whsmith.co.uk">customer.relations@whsmith.co.uk. Thank you

about 1 hour ago via TweetDeckReplyRetweetFavorite

@WHSmithcouk

WHSmith.co.uk

Helen, perfectly reasonably takes exception to that. And this time a dot goes at the beginning of her tweet.

.@WHSmithcouk Tks 4 prompt answer but telling me to email defeats pointt of having Twitter feed! Yr senior mgrs shld come &see 4 themselves

about 1 hour ago via webReplyRetweetFavorite

@octodude

Helen Lippell

The effect of that is that the audience for the exchange leaps from approximately nobody to Helen’s 731 followers. One of whom happens to be me, whiling away a few minutes on the top of a bus.

A more perfect lesson from @WHSmithcouk to @octodude in how not to respond graciously to feedback is hard to imagine. http://t.co/QktTpqPnLY

about 1 hour ago via Twitter for AndroidReplyRetweetFavorite

@pubstrat

Stefan Czerniawski

That adds another thousand or so people to the watching crowd. And now it gets really interesting. That tweet has been retweeted nine times in less than an hour to a notional audience of 24,368 more people.

So the cack-handed response has had the result of changing some effectively private feedback into negative publicity shared with 25,000 people.¹

There are some important lessons there. It’s always interesting to see how far the learning still has to go.

The most prominent predictors of the future tend to be the most wrong

Geoff Mulgan

Steph wants a revolution, and he wants it by next summer. He does not believe in the false consciousness of the bourgeois revolution and is wary of alliances with objective supporters of the current regime. Despite the immaturity of the proletariat, they and only they can be the vanguard of the revolution.

1917 was a good year for the bolsheviks, of course. Little was heard of the mensheviks after that, though little groups survived in exile for a surprisingly long time. But while the bolsheviks successfully introduced the language and the superficial structures of communism,¹ they made rather less progress on changing the substance. When the façade cracked, what lay behind seemed remarkably unchanged.

This is not 1917. Steph is not Felix Dzerzhinsky and shows no signs of wishing to lead the Cheka. But in calling for revolution rather than evolution, Steph is asking us to make a similar choice.

The question he raises is a good one. GDS has made very visible strides on the delivery of online information, in part through ruthless intolerance of counter-revolutionary saboteurs. But that has not been matched in the embedding of digital engagement and open policy making across government more widely, where the white armies still control much of the hinterland and where there is still too much tokenistic playing with technology, and not enough real change. He calls for an end to ‘pat on the head’ digital engagement – and that in itself has recruited Stephen Hale to join him on the barricades.

Catherine Howe, meanwhile, is perhaps the Bukharin of our story: the pragmatic but committed theorist trying to make sense of the landscape and to create policies to match.² Having started with the question ‘are comms the blockers?’ she, and the group whose discussion she is recording, very quickly show the range of people and concerns which can make the adoption of social media slow. Solving that is not about fixing comms, it is about fixing the bigger system:

As the use of social media becomes more entrenched then I would speculate that this will become increasingly a question of organisational leadership rather than any specific practitioner groups and that it will be important to start discussing where that leadership should come from.

By coincidence I was at the Institute for Government on Friday, where Marco Steinberg was talking about the work of the Finnish Innovation Fund and the Helsinki Design Lab.

One of his strong messages was the need to identify and address the architecture of problems: it is easy to see particular aspects of an issue, particularly since organisational structures and job roles tend to reinforce a narrow view; it is harder – but essential if we want to achieve innovation – to understand how the pieces fit together and to design solutions in the context of that understanding. Policy makers need strategic designers to rethink systems fundamentally. Open policy making and engagement are central to doing that effectively – though I suspect Steinberg would be sceptical about defining the problem in terms of digital engagement, rather than engagement more generally. There is a a social dimension to engagement which online approaches can complement, but cannot be a substitute for.

In the discussion which followed, Matthew Mezey mentioned Jake Chapman’s Demos pamphlet System Failure and made the point that though it was greeted with huge acclaim when it was published ten years ago, it has had almost no long term impact. Lots of people were inspired by the approach; few if any found it possible to make the changes necessary for it to work. That resonated with me because I was one of them: I read System Failure when it first came out in 2002 and saw Chapman talk about his work – but until prompted today, I had almost completely forgotten. As ever, the real question is not about the methodology or the technology, but the organisational culture which inhibits innovation.

From that perspective, concentrating on the need to get policy teams blogging, rather than on understanding why digitally enabled policy making is still the exception itself risks being a form of head patting.

Open policy making is one of those new things which is actually not new at all. The idea that better policy making would result from wider engagement and greater participation in the policy making process – or simply from talking to more people who had direct experience and understanding – long predates digital anything. Almost twenty years ago, I remember being present at (and thanking my lucky stars that I was not on the receiving end of) a stern lecture from a cabinet minister to a group of hapless policy officials about the general uselessness of their proposals resulting from their failure to engage properly with the world beyond Whitehall. As Jo Maybin has recently observed:

This concern that civil servants are not using enough knowledge, or the right kinds of knowledge, when making policy is as old as the civil service itself. While the terminology may have changed, laments about the gap between models of evidence-informed policy-making and policy-making in practice, date back to the Haldane report of 1918 and beyond.

The fact that this a problem with a history does not, of course, make it any less of a problem. It is depressingly easy to imagine similar lectures being given today and Whitehall is still not famous for openness and transparency. And I also agree with Steph and others that digital engagement tools create possibilities which were scarcely imaginable twenty years ago and that there is real value in their wider adoption. But before jumping to prescriptions, it’s worth understanding the problem a bit better to see what might help and how.

Politics is making choices about things people disagree about. If there disagreement without a choice, it’s just an argument. If there is choice without a disagreement, you are talking about – or better still doing – implementation. Policy making as a bureaucratic process (the thing which – some – civil servants do) is a way in to making political choices, but it isn’t the only way in and certainly doesn’t solely determine the choices made.

Policy making is not always a wholly rational process, in part because politics (at the level of professional politicians) is in large part tribal:

And herein lies one of the biggest problems in politics. Because choosing between political parties should be a straightforward matter of selecting the policy platform that most closely aligns with your own. But it isn’t; it’s about group identity. And to a certain extent it has to be; because this is a representative democracy not a direct democracy, and we are picking people we trust to make decisions down the line.

So the first temptation for rationalist bureaucrats to put aside is the belief that there is some right policy waiting to be found, and that policy making is about gathering and sifting the sands of data and opinion until the nugget of truth is found. There are areas where something like that happens, but crudely speaking, the more the issue is politically salient to begin with, the less policy making will look like the rational ideal.³ So the first question is whether we are dealing with a political issue or what, for want of a better word, I will call a technical issue.

There is also a critical question about what aspects of policy making we are talking about in the first place. There can be discussions about the process (in a broad sense), identifying data, gathering opinions and perhaps identifying options. There can also be discussions about the substance of the policy in question, not just identifying options, but evaluating them and arguing for a preferred outcome. Civil servants do the first of those, and could undoubtedly do it better. But they don’t do the second in public, and the question of whether they should gets tangled up very quickly with some meaty constitutional issues. So the second question is whether the intention is to be open about the process of a particular piece of policy making or about its substance.

All that suggests that there are two important variables here, which together produce that dreaded, but occasionally useful, thing, a two by two matrix.

In the sense I am using here, a lot of policy isn’t particularly political. To take one prominent example, the rightly applauded openness of the Government Digital Service is firmly concentrated below the line. That gives them a lot of latitude because politically there is almost no controversy (there aren’t many areas of government activity where milestones are retweeted by leading opposition politicians).

But even then, most of what they are and have been open about is in the lower left quadrant, rather than even the lower right. There have been interesting experiments in other departments, most recently at the Ministry of Justice and perhaps most bravely at BIS. The areas MoJ has announced that it is working on – booking prison visits, making civil claims, paying tribunal fees and applying for lasting powers of attorney – are firmly at the technical end of the spectrum, and the coverage of their excellent blog is, unsurprisingly, concentrated on process. Overall, they are where you might expect them to be – in the lower left quadrant.⁴

There is plenty of room for more of this. Four years ago, I rhetorically demanded

Where are the blogs of the policy makers, the operational managers, the chief executives, the tax inspectors, the social researchers, the whole army of people who make up public services?

The answer, now as then, is that even departments attempting systematic coverage are barely scratching the surface – some individual enthusiasts shine out, but even in the best departments there is little sense of systematic openness, still less of this being a tool for open policy making. And as I answered myself four years ago:

One obvious reason why there aren’t very many bloggers is that there aren’t very many blog readers. The blogosphere is so very large that it’s easy to overlook how very small it is. I don’t think most of the people I work with read blogs, so it’s not surprising that they don’t write them. That’s partly because I inhabit a working environment which is about as inconducive as it could be to a modern online existence but it’s partly because people have other ways of spending their lives, odd though that might seem to the people likely to be reading this.

All of which means that, while I would love to be wrong, I am pretty sure that an exhortation for all policy teams to blog, and for all ghost writing to be banned is not going to have quite the immediate transformational impact Steph (and I) would like. The absence of a multitude of blogs is not the problem, it is a symptom of much deeper organisational and cultural characteristics.

But all that still leaves the question of the top right quadrant.

Of course we shouldn’t assume that the roles of civil servants are locked into the structures of past ages and are beyond improvement. It would take somebody considerably braver than I to argue that were true. But as I find myself saying a lot at the moment – and echoing Marco Steinberg – if you want to change the system, you have to change the system – you can’t just take one small part of it and assume that you can change it while everything in the wider system is unaffected.

Steph pretty clearly does want to change the system, and suggests:

An independent commission to rewrite the Civil Service Code, to rethink the roles of Ministers, senior officials, and more junior officials in terms of engaging in policy discussion and taking responsibility for decisions. Alongside it, a frank Parliamentary discussion about the responsibilities of backbenchers and Opposition in holding government to account without stifling open policymaking.

I tend to be sceptical about ideas which depend on taking politics out of  politics (not least because I tend to the slightly unfashionable view that politics is a good thing, not a bad thing).⁵ The idea that any opposition would – or should – avoid challenging and discussing ideas put forward from within government is not just unrealistic but wrong.⁶ There is in any case no prospect of such a commission, and even if there were, answers would be a long way off, so this won’t help meet Steph’s challenge to make a radical difference by summer 2014.

Even if we were to take away the question of political alignment there is still a much more universal question of organisational alignment. Organisations which allow and encourage their employees to think aloud about their employer’s business and its strategic direction are rare oases of self-confidence. Other than a few licensed mavericks (who tend to be smart enough not to bite the hand which is feeding them), that is just not how organisations work. Ending the political neutrality of civil servants wouldn’t stop the secretary of state being the boss.

So my pragmatic view is that starting towards the bottom and the left of the matrix makes good sense. Let’s encourage people to build up confidence, experience and good practice there, moving up and to the right over time. For the reasons I have outlined, the top right corner is much more difficult territory. But if we stop to solve those problems now, we risk getting completely bogged down.

Let’s also stop framing the question as being about the use of digital tools.  It is an encouraging sign of maturity when we can stop qualifying things with ‘electronic’ or ‘digital’. Digital engagement is not a digital problem, it is an engagement problem. More digital activity will be a symptom of better engagement. Better engagement won’t, on the whole, be a symptom of more digital.

The mensheviks need to be more radical about the actions they are willing to take and not just rest on theory and ideology.  But the bolsheviks need to read System Failure and decide what revolution they really want to bring about.

Proletarians of the world, unite!

Picture by Joseph Morris licensed under Creative Commons

No matter how beautiful, no matter how cool your interface, it would be better if there were less of it.

Alan Cooper, quoted by Edward Tufte

Another thing I like about gov.uk is the way it embodies its design principles, and in particular the clarion call to design for the needs of users:

The design process must start with identifying and thinking about real user needs. We should design around those — not around the way the ‘official process’ is at the moment.

There is nothing new about that as a principle, of course, but the fact that it has taken substantial iterations over many years to get even as far as we have demonstrates how hard this is and how much further there is to go, as well as how far we have come.

One of the hardest things for people with a conventional service provider mindset to get their heads round is the idea of a customer journey. It isn’t the idea of setting out the stages from the customer’s point of view which is the sticking point in my experience – that’s conceptually clear even it can be very hard work to do (Stephen Collins has just published a set of actor-focused design questions which shows very neatly how far beyond the obvious it is necessary to get). The sticking point is very often the apparently simple question of when a journey starts and when it ends. Service providers overwhelmingly set the starting point too late, and almost as often set the finishing point too early. The first thing that happens, they might say, is that the customer calls our contact centre, not spotting that from the customer’s point of view that might already be a long way into the journey. The last thing which happens is that our actions are completed and we have done what we were supposed to do for the customer, not spotting that in many cases that is only one stage of a process which has no meaning to the customer until the wider process of which it was part has also been completed.

Here’s a simple example. A few days ago, I happened to notice that a link on the Foreign Office page on gov.uk appeared twice. No great harm done, but worth tidying up, so I reported it.  Within a couple of hours, I had a response telling me that ‘your request has been resolved’. Impressive. Except that they didn’t actually mean that at all, they meant ‘your request has been sent on to some other people to deal with, but we are marking it done as far as we are concerned’. ‘Resolved from the point of view of the gov.uk helpdesk’ turns out to mean something quite different from ‘resolved from the point of view of the service user’.

What that tells me is that the apparent unity of gov.uk still masks the underlying organisational fragmentation of government. No real surprise there. But it also tells me that second order services both matter and may unintentionally illuminate something about the gap between perceived and actual customer journeys – and about how much flapping is going on under the water.

This example is, of course, trivial – I wasn’t stopped from doing what I needed to do, the glitch has now been resolved, even if not quite as quickly as GDS suggested and it wouldn’t have particularly mattered if I had had no feedback about resolution in any case. There are clues that at some level, the problem is recognised.  I may well be reading too much into it, but the fact that they tell me the problem has been ‘deemed solved’ rather than just ‘solved’ suggests some understanding that closing an incident is not the same as resolving a problem. But these kinds of breakpoints are surprisingly common in my experience, and it’s worth reflecting on what that tells us.

It can be surprisingly easy to overlook that you are designing a service at all. It is all too easy to see how designing a helpdesk system could fall into the trap of focusing on how cases are managed and resolved within the organisation at the expense of focusing on the customer experience it delivers. Even with perfect awareness, keeping to the users’ needs is harder than it looks. It may be the first principle, but it competes with other demands. In the end, choices and trade offs have to be made, approximate and off the shelf may trump perfectly targeted and hand crafted.

More importantly for the long run, it shows in a small way that however apparently well integrated your front end, fragmented back ends will always get you in the end. If as service providers and service designers we allow ourselves to focus too much on the former at the expense of attention to the latter, the cracks will become more apparent and more real. As gov.uk increasingly embraces transactions as well as information, preserving the unity of the customer journey in a world where more than one provider is contributing to a service will become increasingly important.

Building Capabilities: Wither the Department? | Institute for Government
While the money continues to flow along firmly departmental lines, with little political appetite to pool either budgets or accountability at scale, most civil servants will continue to see their professional incentives tied to recognition within their department. However, a consistent approach, normalised through small successes in some priority areas may help to shift the centre of gravity – and given that our ‘feudal’ system is so frequently lambasted as a block on effective government, surely it would be no bad thing for our all-mighty departments to wither, if only a little.

Can Oneko Help Beat RSI? | Terence Eden has a Blog
In web design circles, we often hear about designing for visually impaired users but we seem to spend a lot less time talking about those can can see, but find movement difficult or restrictive.

Having large target elements is useful for those whose mousing skills are under-par, but designing a website which can be used only from the keyboard? That’s a challenge.

Cognitive Overhead, Or Why Your Product Isn’t As Simple As You Think | TechCrunch
Minimizing cognitive overhead is imperative when designing for the mass market. Why? Because most people haven’t developed the pattern matching machinery in their brains to quickly convert what they see in your product (app design, messaging, what they heard from friends, etc.) into meaning and purpose. We, the product builders, take our ability to cut through cognitive overhead for granted; our mental circuits for our products’ patterns are well practiced.

Seth’s Blog: First, do no harm–three rules for public interfaces
Most of what we make or design is actually aimed at a public that is there for something else. The design is important, but the design is not the point. Call it “public design”…

Public design is for individuals who have to fill out our tax form, interact with our website or check into our hotel room despite the way it’s designed, not because of it.

In the quest to make it work better, look better or become more powerful, sometimes we do precisely the wrong thing, because we forget about the ‘public’ part of public design. If the user isn’t focused or interested in the innovation of our design, we have an obligation to get out of the way.

2000, the Year Formerly Known as the Future — Editors’ Picks — Medium
You wake up at 7am on a wonderful morning in early 2000. Dreamy as you are, you grab your phone to check the news and your email. Well, the news is that no one has texted you while you were sleeping and that your phone doesn’t connect to the internet. Because, well, you don’t have a smartphone. Just like everyone else doesn’t.

Schneier on Security: Security Awareness Training
HIV prevention training works because affecting what the average person does is valuable. Even if only half the population practices safe sex, those actions dramatically reduce the spread of HIV. But computer security is often only as strong as the weakest link. If four-fifths of company employees learn to choose better passwords, or not to click on dodgy links, one-fifth still get it wrong and the bad guys still get in. As long as we build systems that are vulnerable to the worst case, raising the average case won’t make them more secure.

Schneier on Security
Maintaining privacy on the Internet is nearly impossible. If you forget even once to enable your protections, or click on the wrong link, or type the wrong thing, and you’ve permanently attached your name to whatever anonymous service you’re using. Monsegur slipped up once, and the FBI got him. If the director of the CIA can’t maintain his privacy on the Internet, we’ve got no hope.

Why predictions about technology are always wrong | The Enlightened Economist
Technologies have to be used as well as invented. As he points out, the Chinese invented gunpowder and used it for fireworks, the Aztecs invented the wheel – for children’s toys, and the ancient Greeks invented a steam engine but regarded it as a curiosity

Coppola Comment: The legacy systems problem
So the problem for banks is the balance of risk: the risk of replacing a critical legacy system and it all going horribly wrong (and costing a fortune) versus the risk of increasing instability in an ever-more-complex systems architecture founded on diverse technologies. It’s rather like the risk of a major operation (which could result in death but might lead to full recovery) versus medical treatment to control symptoms – you get iller but you don’t die, at least not for a while. But eventually the operation becomes necessary. The question is whether IT systems in banks have reached the point where radical surgery is the only option.

Rescuing the Reader | Benjamin Ellis
Blogs remain a mainstay of the bigger Internet. They glue things together, inform the search engines about quality content, through their links, and connect people with people. Install an RSS reader today, and start reading some of your friends’ blogs. Maybe even start blogging yourself. By doing so, you’ll be doing your bit to build the Internet, and keep it in the hands of people, not just the businesses that employ them.

Writing is a form of processing my ideas.

Dave Winer

It matters at a detailed level because we all need to understand rights, duties, obligations and constraints. It matters at a social level because it is the framework for mutually accepted constraint which is part of what defines civilised society.

The purpose and foundations of law are lofty and quite abstract. The immediate practicality of law is often hugely detailed, complicated and largely incomprehensible, even to specialists. That’s not a new problem – as Edward VI put it almost 500 years ago:

I wish that the superfluous and tedious statutes were brought into one sum together, and made more plain and short.

That line is taken from – and this post prompted by – the launch of a Cabinet Office initiative on Good Law which aims to ensure that law is necessary, clear, coherent, effective and accessible. It’s hard to argue with those characteristics. But anyone who has ever needed to understand legislation will know just how far the statute book is from representing them.

This post is a reflection on that event. It puts forward an idea for making law more usable which I am fairly sure is absurd and unworkable, in the hope that at the very least it might give those whose job is to think about this problem a fresh way of framing the question – and if by some miracle there might be more to it than that, so much the better.

Update: the video of the event has now gone up at YouTube. The whole thing is two hours, including questions and discussion, but well worth watching at least the opening presentations. There is also a lively discussion among the contributors to a live chat at the Guardian public leaders network.

Some law is simple and powerful. Years ago, when I worked on benefit fraud, the Theft Act 1968 was one of the tools of our trade. Its opening words distill its essence:

A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it

Some law is far from simple. It is hardly possible to sustain the basic clarity of that definition of theft in creating the 4,000 further criminal offences which were apparently enacted between 1983 and 2009. The loss of simplicity may result from the detail and complexity of what it is trying to address, for example the obligation for a mariner to pay national insurance contributions may depend on whether his ship has sailed beyond the River Elbe. But all too often the complexity comes from the structure of the law itself. A power may be inserted in one act by a provision of a second act to produce regulations which may have effect in part by amending a third act or any number of other sets of regulations. It is possible to navigate along those chains, but it is not easy. The diagram below, taken from the good law report shows the web of effects of just one Act, the Companies, Audit, Investigations and Community Enterprise Act 2004. It is not a pretty sight.So the fact that there is a problem is clear enough. The question is what can be done about it. I will not attempt – and am not qualified to attempt – anything like a comprehensive answer to that, but I do want to reflect on one aspect of the problem.

Legislation does not spring fully formed from the heads of parliamentary counsel (and secondary legislation does not spring from there at all, but let’s keep things simple). It is the culmination of long and complex processes which express the underlying intention in different ways at different stages. The general direction is usually from the more general to the more specific – green papers go white, primary legislation generates secondary.

Legislation is far from being the only area of life where this is true. The development of any system or process will tend to go through some version of it, it just won’t have legal force at the end. One of the more obvious parallels is with software development. Commonly that’s seen in terms of law as a logical system, typified by this remote contribution to the good law launch:

I am a former computer systems analyst and now a solicitor. I believe that reducing statutes and case law to a series of nested if-then propositions is possible and would make the law far more accessible to anyone who is able to access a computer. Such computer systems used to be called expert systems. With this new initiative has their time now arrived?

There is a lot of power in this view. In principle such an approach should support a much more direct link from at least some kinds of law to implementation. There are powerful tools based based on just that perception, such as Oracle Policy Automation, which are already starting to be used in some parts of government.

But in this context I am less interested in law as code and more in law as coding. To whatever extent law is like software, is drafting law like writing code?

As John Sheridan pointed out at the launch event, the process of software development has become increasingly sophisticated, not just in the availability of tools, but also in softer techniques such as pair programming. Could similar techniques help create clearer and better structured law?

One starting point is to consider where the definitive version of any piece of software is to be found. Ultimately there is some machine level code which is the set of instructions actually followed by a computer. It is though incomprehensible to humans. Sitting above that is source code which is written by and comprehensible to humans – but only highly expert ones (and the more powerful the software the less straightforwardly comprehensible the source code will be). A step back again, there may be documents which capture the logic of the intended system. Critically in this context, that is the first level for which the primary audience is human. Beyond that, there may be various documents capturing requirements and intentions, but those are descriptions of the intended system, not representations of it. For a system of any complexity, there will also be some kind of architecture which sets out the role of each component and how each relates to all the others.

There is no arguing with machine code: it does whatever it does, and so is undoubtedly definitive in one sense. But in a different way, there is no arguing with higher level requirements: they should be the definitive description of what is intended.

If you want to know how a system works and what it does, you are likely to be much better off starting with architecture and working down towards code than you would be by starting with some arbitrary code and trying to infer architecture.

How does any of that map to legislation? Source code is probably the closest match to legislative text. General requirements are, perhaps more loosely, analogous to policy documents. But what of more detailed specifications? And where is there any sense of architecture?

As it happens, there is a place in the legislative process where high level system logic is captured, though one I don’t think was mentioned at the good law event – instructions to counsel. These are curious documents, with no constitutional or legal status but immense practical significance. They are supposed to be the most complete, rigorous and systematic specification of what the legislation is intended to achieve and in theory (though I suspect vanishingly rarely in practice) should be all that is needed to allow parliamentary counsel to draft legislation which correctly implements ministers’ intentions. In order to do that, they need to operate at several different levels at once. They specify the system logic – the if-then statements both for the policy core and for the inevitable edge conditions. In addition, they both communicate the intention, against which more detailed parts of the solution can be tested, and also set that in context, and may illustrate what is intended in one area by analogy with what has previously been done in another.

Nobody would pretend that they are a light read, but they do have real advantages over the legislation which they generate. The first is that they are comprehensive:  the intention is in a single place, even if the legislative implementation is scattered over new and amended statutes. Secondly, they are continuous prose: they tell a story in a way which the more code-like text of legislation will never equal. Thirdly they are more easily testable: it requires less specialist knowledge and expertise for a minister or policy official to ask themselves whether what the instructions describe is the outcome they intended to achieve. And finally, they are rigorous: much of the virtue in producing instructions lies not in the finished product but in the sometimes painful process of being made to translate implicit or unspoken aspects of the policy into explicit requirements.

A good set of instructions, therefore, is a robust description of the intended legislative effect. The actual draft legislation is either a faithful representation of the instructions, in which case it can have no greater information content than the instructions did to start with, or it fails to be a faithful representation, in which case it is wrong (I am, of course, massively over-simplifying here – ignoring both how legislation changes through its parliamentary passage and the fact that there are already established – if exceptional – ways of ascribing meaning to law other than just through its own language). So we can ask again, which is the definitive version. In the world we know there is only one answer: it is always the legislative text. But perhaps there are advantages in creating a world where the answer is not so simple.

What if we were to give primacy not to the legislation but to the instructions? Put like that it sounds absurd, but what if we were to ask instead, what if we were to give primacy not to the technical coding, but to the agreed and understood system requirements.

The effect in one way would be related to purpose clauses and recitals, both of which try to make clear what the legislation is intended to do before getting into all the detail of doing it – though neither of which seemed to find much favour in the discussion. But it would be a much bigger change than that. Perhaps the most powerful feature would be that they could start at the level of architecture, embodying a version of the network diagram at the top of this post. They would map the landscape to set the reader’s bearings before diving down into the greater detail. They would shift the political debate, with the primary question always being whether the intention is clear and has been fully captured, rather than time and energy being spent on technical amendments which nobody understands.

More subtly, they offer some chance of bringing some of the narrative clarity of case-based law to the more arcane structures of statute-focused law. Richard Heaton made a powerful point that much law is taught and learned through stories, the cases which bring the law to life and set its boundaries in a way very different from the endless technical detail of administrative and other areas of law. That immediately makes it easier to engage the interest and contributions of the great majority of people who are constantly affected by laws of which they have little understanding and over which they have little influence.

So my modest proposal is this. Recognise instructions to counsel for what they are: the definitive statement of what the law should be. Let that be debated by parliament – and by all the rest of us. Treat everything we currently see as legislation as technical implementation of that architecture, still vitally important, still needing the highest quality of professional skill in its construction and application, but of no more interest to non-specialists than the source code of a browser is to those reading these words.

This may be a completely ludicrous idea. I am more than half inclined to think it is myself. But let me end with a thought experiment. If we had the freedom to start again completely, without any sense of how law should best be made and without any burden of history or tradition, what might we then invent? And would that be more like the Westminster model we are all so familiar with, or might it be closer to the approach I have sketched out here?

Source code picture by Sebastian Delmont, licensed under creative commons

The future doesn’t have to be analysed, of course. It can also be imagined. Some imaginings are pure and unashamed fantasy. Others are based on thoughtful consideration of what the not very distant future might look like, based on the often overlooked premise that ‘the future is going to be like the present, only with extra layers’ – though tempered by the earlier thought from the same author that ‘trying to second-guess the near future is increasingly impossible’.

But imagination is not just for science fiction writers. More than a little surprisingly, Consult Hyperion, who describe themselves as ‘thought leaders in digital money and digital identity’ organise an annual competition ‘to develop links between the financial industry and creative practitioners from around the world’.

This year’s challenge was to design a future financial crime. I got to see the shortlisted entries being presented last week, and they have now been published online. I was particularly taken with the eventual winner, Bigshot:

What happens at the convergence of Anonymous Routing, Crypto-Anarchy and Crowd Funding?

In 2013, the individual is capable of wielding more power than ever before. The proliferation of anonymous, web based technologies will enable this yield exponentially, creating the potential for devious criminal activity on a scale never before possible. Imagine a world where dangerous minds have a public platform to solicit support from anyone with an internet connection.

That world is imagined in this video – well worth three minutes of your time.

As well as being an entertaining piece of dystopian thinking, I think it’s worth thinking about the approach more generally. Kudos to Dave Birch and the Consult Hyperion team for having the imagination and confidence for introducing this kind of experimental creativity into a sector not renowned for it. But the cross fertilisation of business strategy and creative arts has equal potential elsewhere. Back in 2006, I noted the splendid performance of the Helsinki Complaints Choir, which does precisely what the name suggests (and is worth another eight minutes). And in a sense, this reframing of the context, forcing a different view of an issue, is what service designers do as, for example, this extract from Snook’s principles shows:

We generate innovative concepts by making space, mentally and physically to be creative and take risks. Design is not just about incremental change and service design but about systems and transformation.

It would be great to apply artistic creativity more widely to understand the futures we might build and the futures which might create the environment in which we build. Perhaps Bigshot will give us the means to crowdsource it.

She thinks she is leading the way, but actually she’s just going in front.

Overheard, context unknown