Most people would now agree that public information should not only be publicly available, but also freely available. In the area of law, this is assumed to include not only legislation but also case law.
This is, after all, the law of the land, ignorance of which is considered no defence. It is probably impossible to know all of the legislation currently in force, and certainly impossible to know all the common law, developed incrementally, case by case, over hundreds of years. But we should at least be able to refer to it. As public information it should certainly be accessible. Does that mean it should also be in public hands?
This article looks at the pros and cons of placing the custodianship of public legal information in public, private or – a third way – charitable (or non-profit) hands. It looks at the situation as it was, as it is now, and as it might be in the future.
Open democracy and open courts
The accessibility of public information is an integral part of how modern democracy works. We now take it for granted that parliamentary debates are not only recorded for posterity in the pages of Hansard but most sittings in both Houses are now filmed and recorded.
In the case of legislation, which is necessarily public information and must be “promulgated”, we no longer have messengers on panting horses bringing news of royal proclamations to the far distant corners of the kingdom, but until recently all statutes and statutory instruments were published officially by HMSO. Copies could be bought at a modest price, as could official reports of inquiries and other public documents from these official printers. Now all current legislation is available free online via the National Archives at legislation.gov.uk
As with proceedings in Parliament, a strong justification for transparency in the courts is the benefit of accountability. Justice is ultimately conducted for the public good, even if most litigation only involves two parties, and in a democratic society the public must have access to reliable accounts of the decisions made in its name.
The ICLR was founded (as the Council for Law Reporting) in 1865 specifically to address the need for consistent and reliable coverage of those decisions that demonstrated not only the activity of justice but also the development of the common law. In its marketing material, ICLR recently described itself as the “Hansard of the courts”, in the sense of providing a permanent record of their deliberations. However, while the Law Reports as a series, almost uniquely, includes an account of oral hearings as well as of the judgments eventually given, they cannot be regarded as offering anything like a comprehensive account of all litigation. With the resources available, that would have been impossible.
Moreover, printed reports cost money to produce and while the cost of subscriptions has, under the ICLR’s not-for-profit mission, always been kept as low as remains consistent with the costs of their preparation, it is not nothing. ICLR does, however, provide free online summaries of the most important cases; something none of its commercial rivals is prepared to do.
Guardians and gatekeepers
Since ICLR was not under a duty to provide a comprehensive public record of proceedings in court, for a case to be made public it had to be selected for publication. That was an editorial decision. The same is true of factual or journalistic reporting, of course. But it meant that, for many years, ICLR performed a “gatekeeper” role in relation to legal decisions. If a decision wasn’t reported by ICLR, the chances were that it wouldn’t be known about and vanished into obscurity. Indeed, ICLR used to rather picturesquely describe its reporters as the “guardians of precedent”.
The advent of the Internet has vastly reduced the ability of any one company or organisation to occupy this sort of gatekeeper role. But it has not removed it altogether. In the context of internet searches, at any rate in Europe, Google is the pre-eminent search engine and so occupies a gatekeeper role. By that I mean, if you can’t find it on Google, you are unlikely to be able to find it anywhere else.
I’m not saying ICLR is the Google of law reporting, though that would be a nice position to be in! But its (former) gatekeeper role in relation to case law placed it in a similar position and imposed on it certain public responsibilities.
The extent to which Google currently discharges its responsibilities, or exploits its dominant position for commercial gain, is the subject of various proceedings in Europe, but to take a single example, the Google Spain case (about what is loosely described as a “right to be forgotten”) well illustrates the tension between private data rights and public information which must be balanced in a way that is free of commercial considerations (Google Spain SL v Agencia EspaÃ±ola de ProtecciÃ³n de Datos (AEPD) (Case C-131/12);  WLR (D) 202;  QB 1022; BAILII. Just as open justice is subject to limitations, so is what might be called open information.
Judgments as public information
The major development in the age of the Internet has been the availability of judgment transcripts. Although these are sometimes provided directly by the courts themselves, and more comprehensively (for a far from negligible fee) by commercial transcribers and publishers, the most comprehensive and completely free collection is maintained by another not-for-profit organisation, with which most readers of this publication will be very familiar, the British and Irish Legal Information Institute (BAILII).
While the content of judgments is generally believed to be covered by Crown copyright, the government does not publish them all, or even a fraction of the number appearing on BAILII (who in turn do not have all of them either). The Supreme Court and the Judicial Committee of the Privy Council each publish their own judgments and opinions on their own websites, as do the European Court of Human Rights and the European Court of Justice. But the Courts and Tribunals Judiciary website only publishes a selection of judgments and sentencing remarks, chosen by reference to their likely media interest rather than their usefulness as precedents or for legal research.
That means that BAILII is the largest and best repository of free public information in the form of primary sources of law (“raw law”, if you will). This is law as it was made, with some links and additional information, but not turned into law reports or commentary. It is hugely popular, not just with journalists and academics but also with the judiciary and practitioners, who regard it as a first port of call for case law research, even if they have access to more comprehensive paid-for services.
For the judiciary, BAILII’s significance lies in its free public access. There is, in the Family Division and Court of Protection, practice guidance (PDF) issued by the senior judiciary, directing that judgments be sent to BAILII for publication in pursuance of the transparency agenda initiated by the current President of those courts, Sir James Munby (Practice Guidance on Transparency  1 WLR 230, Fam D). Those directions could have specified publication on the Courts and Tribunals Judiciary website . But Sir James chose BAILII because, essentially, everyone knows and uses it. (Oddly enough, these practice directions are not themselves published on BAILII, though they are on the Judiciary website!)
Public, private or third sector custodianship?
As a primary source of the law of the land, case law should ideally be published comprehensively by a public body in the same way as legislation. If the decision of a court is a matter of public record, should not the reasons given for that decision also be made public and preserved?
In an ideal world, the online realisation of open justice would involve the collection of probably four types of information for public access: first, the initiating documents such as claim form, pleadings, appellants’ notice, affidavits and perhaps also exhibits thereto, or in criminal cases the indictment and witness statements; second, the oral hearing, recorded digitally and transcribed, together with any skeleton arguments; thirdly, the judgment, as handed down or transcribed, then as approved for publication; and finally, the orders of the court, including awards of damages and costs and any injunctions granted, or sentences for crimes.
But we do not (yet) live in an ideal world. Even the statutes which are currently provided online by a public service (the National Archives) are not fully consolidated, or comprehensive (most archive content is not available). Hard copy, formerly available from the official printer HMSO (a public body) is now provided by The Stationery Office (TSO), part of the Williams Lea group, which in turn is part of Deutsche Post DHL (a commercial organisation). But for a truly complete view of legislation, you still need to consult a hard copy archive in a library, or use a commercial database such as LexisNexis or Westlaw. That may change, but it hasn’t done yet.
The ability to provide a truly comprehensive, and perhaps also free, service is a major justification for the custodianship of content to be managed by a public body. The work done by the National Archives in developing and maintaining the online statute book during a period of austerity and budget cuts has been amazing. But the utility of the site depends enormously on its ease of use and the excellent search facilities it has. This cannot be said of some other government websites.
There’s no denying the ambition and scope of the Gov.uk project, whereby the Government Digital Service (GDS) has merged the websites of almost all government department and many other agencies and public bodies into one, but there have been questions about how easy it is to find content which used to be held on specific sites and is now in a great bran-tub of information. This was the subject of an earlier article in the Internet Newsletter for Lawyers , so I won’t labour the point. The key problem is the difficulty of locating the information within this vast site. Using its single field home page search box is like finding a specific size of brass screw in a 3-acre builders’ yard by asking the security guard in the car park.
This well illustrates the difference between information being available, and it being accessible or transparent. Ironically, it is that commercial organisation, Google, which comes to the rescue here, because it searches the whole site from outside, and its constantly updated algorithms take you directly to the content you seek.
Interestingly, the UK Supreme Court, under the deputy presidency of Lord Hope, made a deliberate decision to go independent and separate itself from the “gov.uk” family. In 2013 it changed its web address to supremecourt.uk from the old supremecourt.gov.uk which it had initially been forced to use, according to Joshua Rozenberg in The Guardian, “implying that it was part of the government rather than the final safeguard against unlawful government behaviour”.
This is a point about the separation of powers which could equally well be made in relation to all judgments. In other words, while the Courts and Tribunals Judiciary website is not yet part of the GOV.UK umbrella, there may be a good argument for saying it should not even include gov.uk in its URL – reinforcing the independence of the judiciary. While it remains part of the government informational fold, however, support for an independent repository of judgments (many of which may, as Rozenberg suggests, be critical of the government and public bodies) will continue to be strong, and BAILII will continue in its role as the trusted, trustee-led, not-for-profit custodian.
The same is not true, obviously, for legislation since that is published by the government itself, and its preservation by a public body makes perfect sense. Therefore, the approach adopted in relation to some kinds of public information (such as legislation) need not be the same as for others, such as case law. In the case of the latter, while it may not be ideal, the third-sector approach is one that makes sense in today’s world.
Both BAILII and ICLR are not for profit organisations. Subject to adequate funding, they can preserve public information in a way that provides public access while protecting the interests of open justice and preserving the separation of powers. That suggests the current model of a trustee-governed not-for-profit organisation like BAILII or ICLR is probably the best we can do, for the moment at least, in terms of ensuring both (a) respect for privacy and confidentiality, and (b) accessibility at no or low cost.
Paul Magrath is Head of Product Development and Online content at ICLR, publishers of The Law Reports since 1865.
ICLR Online provides fast, convenient access to all the case law published by ICLR over the last 150 years, and its integral Citator+ database indexes all the additional cases reported in other leading series, as well as linking to original judgments on BAILII. We are currently developing an even more comprehensive search and massively expanding the content available.
For more information, visit www.iclr.co.uk or call 020 7242 6471.Tweet