In the new legislative period, what has been neglected in the last few decades should finally succeed: Germany’s administration has to abandon the fax machine and dare to step into the modern age. The very first chapter of the exploratory paper of the traffic light parties therefore speaks of a “modern state” and the “digital awakening”. A large part of this is the question of how laws can be designed digitally from the outset.
But how can that be achieved? “Digital applications are always considered and implemented. To do this, we want to subject laws to a digitization check, ”is the vague answer of the parties in the exploratory paper. What that means in concrete terms, the FDP, Greens and SPD do not want to comment on request. The exact design of this digitization reservation remains unclear for the time being.
The Handelsblatt, together with German scientists and a member of the Danish digital agency, examined which aspects would have to be taken into account so that a digital check brings more than just another note on the file. Such a reservation has existed in Denmark since 2018. It has shown success: 95 percent of Danes use the administrative services here digitally.
Old idea on new paper
The digitization check for laws, which the parties are now selling as a new idea, is more than 60 years old in its basic features. In 1958, when the Income Tax Act was changed, “administrative automation” was taken into account for the first time. At the time, the approach was called “automation-compatible legislation” – an entire area of legal informatics was developing.
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Jörg Pohle, who heads the research program “Data, Actors, Infrastructures” at the Humboldt University Berlin, explains the simple questions that were at stake at the time: “For example, if you wanted to pay out monthly money to citizens, but only the annual amount in the law stood, it had to be divisible by 12. ”The example shows what the core of the project was: the implementation should be taken into account as early as the legislative process.
Although several federal states and also the Federal Ministry of the Interior issued principles for “automation-compatible legal and administrative regulations” in the 1970s, the new area of law gradually fell asleep in the decades that followed. According to Jörg Pohle, this was also due to the fact that the implementation in automated processes was more difficult than expected.
But due to increasing digitalization, which does not stop at the administration, the topic is now back on the agenda. Since the beginnings of legal informatics, not much has changed in the principles that have to be adhered to for “digitally compatible laws”. The main challenge is to make legal statements understandable for programmers and their machines.
Clear rules for machines
The difficulty of the interaction between the two professional fields is illustrated by a quote from the book “Neustaat” by Bundestag members Nadine Schön and Thomas Heilmann (both CDU): “When a lawyer says: ‘It depends,’ the programmer asks: ‘What for?’ . ”
In other words: machines cannot do much with the scope for interpretation of laws. Instead, clear decision-making rules based on the “if, then” pattern and clear definitions of terms are needed – according to a strategy paper from the Public IT Competence Center.
In order to make laws digitally suitable, the new government needs experts who should undertake such a “translation service” between law and IT, says Jörg Pohle. Kristoffer Nilaus Olsen is someone whose job it is to do this translation work every day at the highest government level.
Olsen is the “Chief Advisor” of the Danish digitization agency, which is affiliated with the Ministry of Finance in Copenhagen, where it performs a kind of “digital check” for all ministries. Around half of all laws are considered digitally relevant enough to be subject to such a review. In the past, this included the standardization of debt collection services or the automated calculation of limit values for the quality of agricultural land.
As “Chief Advisor” of the Danish digitization agency, Olsen takes over the digital checks of the new law
The six-person team that takes on this digital check consists of lawyers and political scientists, but also IT experts. Olsen himself is actually a computer scientist, but has been working on the digitization of governments for almost ten years. “Legislation suitable for digital use can have different degrees of maturity,” he explains.
In order to define which aspects contribute to a “high degree of maturity”, Denmark has formulated seven principles. They are the basic rules for laws that are suitable for digital use. The first point is: simple and clear rules. The principles also include automatic processing, the recycling of existing data and the use of public infrastructure.
Incorporate from the start
Olsen and his team do the “check” for these principles, but the ministries should incorporate them into their legislation from the start. If the check reveals construction sites, the digital agency asks the responsible bodies for a dialogue. “In 75 percent of the cases, they accept the offer,” says Olsen.
In Germany, too, a digital check would in the best case only give the “go” for a law that was developed “digitally ready” from the start. Norbert Kersting, Professor of Comparative Political Science at the University of Münster, points out that a digital project, if poorly executed, would otherwise only result in one additional note in the draft: “The environmental impact assessment also showed that many aspects were not implemented after all were “, he warns.
In order for the digital check to have the desired effect in the end, the Danish digital expert Olsen advises pooling the competencies for this at a central point and not distributing them across the ministries. In this way, “best practice” examples can be collected, and the experience of the digitization process is bundled in one place.
More: Digitization isn’t sexy, it’s hard work