Open law is the idea that public legal information should be freely available to everyone to access, use and republish. The current position in the UK differs completely as between legislation and case law.

Legislation

In 1996 HMSO started publishing primary and secondary legislation online, “as published” – so only accurate as at the day in came into force; it wasn’t until 2006 when the UK Statutory Law Database finally launched that access to amended text became possible.

Within a few years that service was completely redeveloped and enhanced so that since July 2010 we have had a world class official home of UK legislation at legislation.gov.uk delivered by The National Archives (TNA). The sophisticated service provides simple and direct browse access to legislation by type, year and number and simple or advanced searches. Any piece of primary legislation or legislation fragment may be viewed as enacted, as revised (current) or as it stood at any point in time. Any piece of legislation or legislation fragment can be addressed reliably and simply via a permanent URI scheme and any list of legislation can be delivered as an Atom (RSS) feed.

Despite its sophistication, legislation.gov.uk has to date failed to provide an adequate service inasmuch as consolidation of primary legislation has been incomplete, in some cases lagging several years behind amending legislation. However, as noted in the Legislation update in this issue, the revised legislation is on course finally to be brought up to date by the end of 2018.

Copyright in UK legislation lies with the Crown. It is now administered under the UK Open Government Licence which grants users “a worldwide, royalty-free, perpetual, non-exclusive licence to use the Information” subject to some conditions and exemptions – mainly to do with other associated intellectual property rights. This means there is almost complete freedom to reuse the data from the legislation.gov.uk site – a model of open law.

Case law

The legendary “Free the Law” meeting at Chatham House in London in 1999 gave birth to what became the British and Irish Legal Information Institute (BAILII). At that time free law in the UK was sparse and patchy and the access provided by BAILII, within 6 months of that meeting, to all of it and more, all in one place, was a revelation.

The Supreme Court, the Privy Council, the Scottish Courts, the Northern Ireland Courts, the tribunals: all are now publishing their decisions competently online. The notable exception here is the High Court: HMCTS gave up its own efforts and sends unedited judgments out in RTF to BAILII and other publishers via email.

But, at the 1999 meeting, Professor Graham Greenleaf, co-founder of BAILII’s progenitor, the Australasian Legal Information Institute (AustLII), stressed that, “Official provision of free access to legal information through ‘official’ sites is certainly desirable but … it is not enough. Even in the face of good quality government publication, there is a need for an independent source of free access to public legal information.”

In the UK, that source is BAILII. Not only does BAILII republish government-provided judgments, but it has also made up for deficiencies in public provision, particularly in respect of historical judgments by, inter alia: negotiating rights from Casetrack and Justis to republish some of their historical judgments; digitising and publishing over 40,000 pages of leading case judgments through the Open Law project, funded by JISC; “saving” the entire library of Privy Council transcripts; publishing every judgment of the Employment Appeal Tribunal, going back to the late 1970s, with the help of funding from Matrix Chambers.

It is difficult to see government ever making effective provision for historical judgments given private publishers’ and transcribers’ copyright claims and contraints on the public purse. But what of current law? Why does the MoJ release judgments through a contract with BAILII? Why does BAILII not allow search engines to index its judgments? Who owns copyright in judgments? Why does BAILII forbid reproduction on other sites? The late access to law and justice champion and former BAILII trustee Sir Henry Brooke answered all these questions in some detail in an interview published online on the Society for Computers and Law site in 2011.

We are left with the question: Is free case law enough; are we not entitled to open case law?

Open law

The Montreal Declaration on Free Access to Law (2002, as amended), to which BAILII is a signatory, declares that:

“Public legal information from all countries and international institutions is part of the common heritage of humanity. Maximising access to this information promotes justice and the rule of law; Public legal information is digital common property and should be accessible to all on a non-profit basis and free of charge; Organisations such as legal information institutes have the right to publish public legal information and the government bodies that create or control that information should provide access to it so that it can be published by other parties.”

That describes open law – law that is accessible not just for free but without restriction.

But what the Montreal Declaration refers to as “public legal information” is not all, in the UK, “public sector information”. Copyright in judgments is not vested in the Crown but in the judges (that was Sir Henry Brooke’s view; the Bar Council is not so sure). The data is thus not subject to the Open Government Licence and is outside the scope of the government’s open data agenda.

Sir Henry said that “since both the Government and the Judges wish all judgments to be available freely without copyright constraints, there seemed to be nothing to be gained by litigating (or arbitrating) the [copyright] issue.” But how can the law ever truly be freed without a determination that judgments are indeed “digital common property”?

Sir Henry also acknowledged that: “Until the advent of the internet, neither MoJ nor its predecessors ever recognised any duty to issue case law and make it public, a duty which certainly isn’t contained in any statute.”

Public provision from most courts has improved considerably, but it is inexcusable for HMCTS not to invest in the minimum publishing infrastructure necessary to deliver properly edited open case law.

Open justice

Open justice is a legal principle describing legal processes which are characterised by openness and transparency. Whilst open law is a necessary element of open justice, open justice requires also, for example, facilitating access to other court documents for reporters and the public and efforts to explain court procedures and outcomes to the public and the press.

Nick Holmes is Editor of the Newsletter. Email nickholmes@infolaw.co.uk. Twitter @nickholmes.

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