It is ironic that BAILII, which came into being to free the law, has been called out recently for restricting access to the law.

A Guardian editorial in September criticised the status quo in relation to the publication of court judgments and called for more open access. In so doing BAILII came across as the villain of the piece rather than the saviour of free law which most lawyers know it to be. Nevertheless, the editorial did raise valid questions about free and open access to case law which deserved answering. I asked Sir Henry Brooke, retiring chairman of the BAILII trustees, for his response to those questions and the resulting article is now published online on the Society for Computers and Law site.

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? Sir Henry answers all these questions in some detail. But we are left with the question: Is free law enough – are we not entitled to open law? And if we do believe in open law, how do we get there?

Free law

The legendary “Free the Law” meeting at Chatham House in London in 1999 gave birth to what we now know as BAILII. (See the transcript of that meeting.) 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.

Since then, government provision of legal information has taken great strides. The legislation service at legislation.gov.uk is still woefully behind in its consolidation programme, but it is a sophisticated web resource and a model of open access. 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, 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?

Open law

BAILII is a subscriber to the Montreal Declaration on Free Access to Law (2002, as amended in 2007) which 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’s unequivocal support for open law – law that is accessible not just for free but without restriction. But it is not for BAILII to provide open law; it is for government.

The current government is committed to delivering open government and open data. In the foreword to its consultation Making Open Data Real Cabinet Office Minister Francis Maude says: “Openness is at the heart of this Government’s approach. Open Government and Open Data have the power to transform absolutely the way government and society work for the better.”

But what the Montreal Declaration refers to as “public legal information” is not, in the UK, “public sector information”. Copyright in judgments is not vested in the Crown but in the judges (that is 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 says 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 acknowledges 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.”

We have the internet now and technologies that have dramatically reduced publishing costs. 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 law”.

Nick Holmes is joint editor of this Newsletter.

Email nickholmes@infolaw.co.uk.