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Mission Possible! Free Access to Case Law and The National Archives
Published online by Cambridge University Press: 18 May 2023
Abstract
The National Archives launched a new service called Find Case Law in April of last year. Here Daniel Hoadley, Amy Conroy and Editha Nemsic, of Mishcon de Reya LLP, argue that while this does offer some accessibility and legibility it's perhaps not providing access to the full corpus of law that it could, or even should. Also, on a broader level, they propose that there is a case to be made for access to the law being guaranteed and publicly funded.
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- Copyright © The Author(s), 2023. Published by British and Irish Association of Law Librarians
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Footnotes
1 The National Archives, ‘The National Archives to publish court judgments’ <www.nationalarchives.gov.uk/about/news/the-national-archives-to-publish-court-judgments/> accessed 10 October 2022.
2 ibid.
3 Joshua Rozenberg, ‘Find Case Law’ (A Lawyer Writes, 19 April 2022) <https://rozenberg.substack.com/p/find-case-law> accessed 10 October 2022. The failed test Rozenberg mentions refers to the difficulty he experienced locating the Supreme Court's decisions in R (Miller) v Secretary of State for Exiting the European Union) [2017] UKSC 5; [2018] AC 61, SC and R (Miller) v Prime Minister [2019] UKSC 41; [2020] AC 373, SC.
4 ibid (authors’ emphasis).
5 Digital Marketplace, ‘The National Archives: Developing a Public Access Service for Court Judgments with a Publishing and Editorial System’ (gov.uk, 30 November 2021) <www.digitalmarketplace.service.gov.uk/digital-outcomes-and-specialists/opportunities/16224> accessed 10 October 2022.
6 Digital Marketplace, ‘The National Archives: Enriching Court Judgments and Legislation Documents, Adding Hyperlinks and Creating Linked Data’ (gov.uk, 30 November 2021) <www.digitalmarketplace.service.gov.uk/digital-outcomes-and-specialists/opportunities/16014> accessed 10 October 2022.
7 Tom Bingham, The Rule of Law (Penguin Books, 2011) 37 (authors’ emphasis). Also see R (UNISON) v Lord Chancellor [2017] UKSC 51; [2020] AC 869, SC at para 68.
8 ibid, p 42.
9 <www.legislation.gov.uk/ukpga/2021?page=1> accessed 10 October 2022.
10 <www.legislation.gov.uk/ukpga/2022> accessed 10 October 2022. At the time of writing, the most recent Act of Parliament is the Energy (Oil and Gas) Profits Levy Act 2022.
11 Hoadley, Daniel, Tomlinson, Joe, Nemsic, Editha and Somers-Joce, Cassie, ‘How Public is Public Law? The Current State of Open Access to Administrative Court Judgments’ (2022) 27 Judicial Review 95CrossRefGoogle Scholar.
12 ibid at 96.
13 ibid.
14 Government procures the services of a panel of commercial agencies to perform transcription services in the courts, including the transcription of judgments given ex tempore both onsite and off-site. The current procurement contract can be found here: <www.contractsfinder.service.gov.uk/notice/b6e8435f-5804-4c3b-ac2b-2d739397526a?origin=SearchResults&p=1>.
15 ‘The ICLR Guide to Reportability’ (ICLR Knowledge) <www.iclr.co.uk/knowledge/guides/the-iclr-guide-to-reportability> accessed 10 October 2022.
16 WTS Daniel QC, History of “The Law Reports” (William Clowes and Sons 1884) 63-65.
17 CanLII, ‘Montreal Declaration on Free Access to Case Law’ <www.canlii.org/en/info/mtldeclaration.html> accessed 11 October 2022.
18 Independent Review of Administrative Law (Cm 407, 2021).
19 Independent Human Rights Act Review (Cm 586, 2021).
20 Paul Craig, ‘Judicial Review, Methodology and Reform’ [2022] PL 19.
21 Independent Review of Administrative Law (Cm 407, 2021) 159.
22 [2011] UKSC 28; [2012] 1 AC 663, SC(E).
23 Independent Review of Administrative Law (Cm 407, 2021) 70.
24 Joe Tomlinson and Alison Pickup, ‘Putting the Cart before the Horse? The Confused Empirical Basis for Reform of Cart Judicial Reviews’ (U.K. Const. L. Blog, 2021) <https://ukconstitutionallaw.org/2021/03/29/joe-tomlinson-and-alison-pickup-putting-the-cart-before-the-horse-the-confused-empirical-basis-for-reform-of-cart-judicial-reviews/> accessed 12 October 2022.
25 The panel reported that there had been 5502 applications for Cart judicial reviews between 2012 and 2019. Their trawl of Westlaw and BAILII revealed 45 Cart review judgments, of which 12 were decided in the applicant's favour. On this basis, the panel reported that the Cart success rate was 0.22%. Tomlinson and Pickup note the 0.22% “figure being relied on artificially deflates the actual success rate by taking 5457 cases—where we have no data on the outcomes—and assuming they were all failures. There is no basis for that assumption.”
26 ibid (n 25).
27 Dr Natalie Byrom, Digital Justice: HMCTS Data Strategy and Delivering Access to Justice: Report and Recommendations (October 2019), paras 4.47–4.60: <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/835778/DigitalJusticeFINAL.PDF> accessed 12 October 2022.
28 Constitution Select Committee, Covid and the Courts (HL 2019-21, 257) para 243.
29 Dr Natalie Byrom, Digital Justice: HMCTS Data Strategy and Delivering Access to Justice: Report and Recommendations (October 2019), para 4.59: <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/835778/DigitalJusticeFINAL.PDF> accessed 12 October 2022 (authors’ emphasis).
30 Public Records Act 1958, s 8(1).
31 Michael Cross, ‘Government Considers Plans to Create National Hub for Court Judgments’ (Law Society Gazette, 10 May 2021) < www.lawgazette.co.uk/news/government-considers-plans-to-create-national-hub-for-court-judgments/5108426.article> accessed 15 December 2022.
32 Hoadley, Daniel, Tomlinson, Joe, Nemsic, Editha and Somers-Joce, Cassie, ‘How Public is Public Law? The Current State of Open Access to Administrative Court Judgments’ (2022) 27 Judicial Review 95CrossRefGoogle Scholar.