Strengthening Development of Rules As Code: Submission to the OECD’s OPSI on Cracking the Code

Abstract

The draft working paper, 'Cracking the Code: Rulemaking for humans and machines' (OECD, May 2020), published by the OECD’s Observatory of Public Sector Innovation (OPSI), is intended to act as a 'primer', a resource for public servants across OECD Member States, to help them understand and engage with the concept of ‘Rules as Code’ and its implications. This paper, while generally very supportive of 'Cracking the Code', is a submission to OECD OPSI which makes 14 suggestions for further strengthening the concept and the implementation of 'Rules as Code' (RaC). The suggestions include support for: application of RaC to both conversion of existing legislation and application to new legislation; the use of declarative rules in knowledge-bases; continuing research on 'scaling up' legislative knowledge-bases; ensuring NGO involvement (including by LIIs); and acceptance that interpretation of open-textured terms usually cannot be avoided and must be accommodated. 'Cracking the Code' proposes six principles for successful development of RaC, and while we support them we suggest some major amendments In particular we argue that 'Appealability' does not provide sufficient governance over when automated decision-making should be used at all, and a broader 'Appropriate Application' principle may be needed. We also suggest two further principles, 'Sustainability' and 'Access to Legal Sources'.