Don’t throw the BAILII out with the bath water
26 September 2011
The Guardian published an editorial today arguing that court judgments should be opened up to the public. The editorial challenges the fact that BAILII, the charity which currently publishes most judgments online, is not searchable on Google.
Broadly speaking, it is good to see The Guardian taking up this somewhat esoteric but important topic. As I have argued on a number of occasions (see e.g. Making Law Accessible to the Public) the Ministry of Justice needs to do more to make “raw” law, that is judgments and legislation, accessible online. But it is important to focus on the right issues.
Case law should, ideally, be searchable on Google. BAILII explains the reason for not making it so:
- Occasionally it is necessary to remove a judgment from the BAILII database, for example if BAILII has been provided with a copy of a judgment which discloses confidential information such as the name of a child. This is more difficult once the judgment has been indexed by a search engine, and cannot be carried out promptly.
- If the text of a judgment is amended by the judge, the unamended version should not be available in the cache of a search engine.
This is a practical issue between BAILII and the Ministry of Justice, not a deliberate or pernicious ploy to keep judgments out of the public domain. As I have said before, BAILII has a good, simple interface and its search works very well. Although it has few of the baubles of Westlaw (a very expensive subscription service which only lawyers tend to have access to), it is easy to use and reliable.
I can see the technical point BAILII is making; once something is out on Google, it is instantly and in effect permanently outside of the control of the originating source. It would therefore be practically impossible to escape Google’s cache in order to remove the text of judgments. That being said, Google does have the power to remove, for example, libellous material and sometimes does. Given that Google itself is an enthusiastic publisher and indexer of public data it may be that a creative solution is possible.
The Guardian also praise Judgmental, a project which aims to put judgments online and make them Google searchable. We should fully support any citizen-led efforts to bring the law to more people. But this website appears to be down at the moment, as was the last time I was trying access it for an article. This is not a good sign.
The danger in all of this laudable focus on alternative sources for online judgments is that BAILII will go under as a result of lack of funds. It has recently lost a major funder and is appealing to chambers and solicitors’ firms at the moment for more money.
It would be a tragedy if BAILII folded, not least for legal blogs which rely on it. I also doubt that Judgmental or another public service would be in a position to pick up the pieces. BAILII costs £160,000 per year to run; I doubt that the Ministry of Justice would foot this bill, assuming it could offer the same quality of service for the same money once the costs of its bureaucracy were added on. And the knowledge and experience BAILII has developed would be lost too.
The Ministry of Justice currently runs legislation.gov.uk, a nice website let down by its slow updates. As I have argued before, public authorities should be barred from relying on a new law until it is easily accessible online. This issue is probably more urgent at present than forcing BAILII and Google to hold hands.
Another focus, which The Guardian also mentions, should be the publication of judgment summaries and press releases as the UK’s Supreme Court and European Court of Human Rights already do to great effect. Lord Neuberger, the head of the Court of Appeal, has supported this idea and his court should therefore lead the way.
So it is right to pressure the current Government, which seem to like the idea of data being open and accessible, to do more on access to online justice. But in doing so, it is important to not throw out the BAILII with the bath water.
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