The first point to make is that this is not about reported case law (of which ICLR is the leading provider) but about unreported judgments of the superior courts. In its editorial, published 26 September, the Guardian argues that there is an overwhelmingly strong argument for “opening up judgments to real public view and scrutiny”, by making them freely available on the internet.
This seems perfectly unobjectionable, except that the demand has in large measure already been met. The Supreme Court, its predecessors the House of Lords and the Privy Council, and a number of tribunals (such as the Competition Appeal Tribunal) all publish their judgments on their own websites, as do the European Courts of Justice and of Human Rights. Any judgments which cannot be found on a court website, together with all of those which can, are to be found freely available on the website of the British and Irish Legal Information Institute, better known as Bailii.
But according to a group calling itself Judgmental, who seem to have stung the Guardian into writing its editorial, this is not good enough, because the contents of the Bailii website are not searchable on Google. The implication is that unless something can be found on Google, it isn’t available.
The reason why judgments on Bailii cannot be searched on Google has already been explained in a response to the editorial by Adam Wagner on the UK Human Rights blog (Don't throw the Bailii out with the bathwater) also hosted by the Guardian.
But there is a wider argument about access to raw law which is worth addressing. The argument goes something like this. If justice is to be open, transparent and accountable, then there must be no barriers to anyone seeing it in action. Courts must be televised so we can see what goes on and be satisfied our tax pounds are being efficiently and fairly spent in dishing out justice. And since ignorance of the law is no defence, anyone should be able to find out what the law is without the trouble of studying and qualifying in any formal sense, or even having to spend money on a book.
Leaving aside the question whether there might be a difference between having information and being able to use it (to interpret and formulate advice on the basis of it), there is already a huge amount of raw law freely available. The Legislation.gov.uk website, delivered by the National Archive allows anyone freely to search all statutes, statutory instruments, measures etc. It is not complete but getting there. There is the Bailii website and other resources offering comprehensive (if not total) coverage of court judgments, not to mention all those courts offering cases on their own websites. And there is a surprising amount of law and legal information, including caselaw, on Wikipedia (all of it searchable on Google, presumably) as well as a number of other free resources.
If anything, therefore, the problem is not too little raw law, but too much.
The ICLR is guilty of adding to the stock of free knowledge by making a complete list of all its reported cases freely searchable on its “Case search” facility (which offers basic citator information on 77,000 cases published by ICLR since 1865), as well as providing free case summaries of recent landmark decisions in its WLR Daily service. All of this information is also accessible via Google search.
Nevertheless, Judgmental have taken it upon themselves to provide their own collection of judgments on a website that, unlike Bailii, will be searchable via Google. Unlike Bailii, the website isn’t actually working at the moment, so this may not have been the best time to start a campaign to publicise its contents.
According to Bailii’s executive director, Joe Ury:
“As far as I can tell they think they are freeing the law by merely republishing BAILII html versions of judgments on their site and allowing google to index them there. They do none of the real work of tracking down, gathering and converting judgments and just seem to be feeding off the work of others.”
He adds “Sadly, reading this article may give one the impression that only lawyers can use Bailii.” In fact, anyone can use it, and the search forms (simple and advanced) are about as accessible and straightforward as you could ask for. If a lay person knows what they are looking for, they will find it a lot easier using the Bailii search form than they would casting about for a needle in the Google haystack.
But what if the lay person isn’t aware of this marvellous resource? Well, suppose they aren’t. Where would they start? Perhaps by going to the Ministry of Justice website, which is where the Guardian thinks the judgments ought to be held, and searching for “judgment”. The results include, second on the list, an external link to Bailii.
There are other ways of reaching the not very cleverly hidden Bailii website, not least of which is the way it is hyperlinked to whenever the Guardian discusses a judgment in its brilliant online law service. Bailii is here to stay, whatever anyone says to the contrary, and if Judgmental or anyone else seeks to supplant it they will have a hard act to follow.