BAILII – Five Year Celebration Meeting

April 30, 1998

LORD JUSTICE BROOKE: Here we are again. I am sorry you have got to listen to me again. The rest of my trustees are rather shrinking violets.

This evening is designed as a celebration. It will be a celebration with talks and with very interesting talks, but the main feature of the evening is celebration. We are really grateful to the partners of Baker McKenzie for providing this accommodation, providing these drinks, and generally being wonderful sponsors of this evening. The Society for Computers and Law: something like BAILII was a dream of the Society long before I became President in 1992 and they have been wonderful with financial support and have been wonderful in the support for this occasion. BILETA were sponsors of the Chatham House evening and they are in as sponsors of this evening. They are wonderfully supportive.

BIALL too: It is really important that we have firm links with law librarians and that they should understand what we are up to and that we should be listening to what they need.

And WordWave, I have already referred to Smith Bernal, their other name, earlier this evening. I have already said how grateful we are to them.

I will make an announcement again for those who were not here for the first part of the evening. No smoking, please. Please turn your mobile telephones off and please note the emergency exits and if there is an emergency evacuation, please remain calm and follow the instructions of Baker McKenzie’s staff. If there are any members of the Bar here who need to fill in a form to score brownie points or something or other, we have got the forms here.

That extraordinary Chatham House meeting was on 8th November 1999, so it is practically five years since then. We are having the meeting a week early because we are pretty confident BAILII will last another week and it is obviously much more helpful for those who are going on to the Paris conference later in the week that we should have it tonight rather than next Monday.

But it is an evening of thank yous. Thank you to the funders who have made it all possible; to the big funders: The Inns of Court and the Bar. I know that representatives of the librarians of the Inns of Court are here and we are really extremely grateful for their support. To the Law Society. To the Society for Computers and Law. To the City Solicitors’ Educational Trust, who have been enormously helpful up to now and have now made it clear that we are on our own but – if we can provide projects which provide for undergraduate legal education, then they will be again interested in helping us.

The Court Service have now come on board for the work which we are doing in providing pretty well instantaneous delivery of the judgments of the Court of Appeal, the Administrative Court and other parts of the Royal Courts of Justice.

BILETA I have mentioned. And the increasing number of medium-sized funders who give us £1,000, or £500, or £250 a year, and sometimes a bit more. Among those are a handful of universities, rather embarrassingly more of Scottish universities than I think English universities, but even they are growing because they can see the value of the work that we do. A handful of Bar Associations and barristers’ chambers. For some reason or other we have not yet penetrated the solicitors’ world, apart from the institutional help we have from the Law Society and its charity.

Wonderful help, not only financial help, but also encouragement, from Delia Venables, who has been a huge support from the start. And others who are up on our website whom I have not mentioned but are certainly not forgotten. Earlier in the evening I mentioned Jordans, the law publishers, who were a great help to us at the start.

We are always anxious to retain our independence so that we have been phenomenally keen as a body of trustees not to be in hock to one or two big sponsors. It might be easier to go the route of asking some big firm for huge sponsorship and have their name emblazoned over the site, and it is in a sense rather more exhausting and rather more tiring to go out to the market and say, “Can you give us £500 or can you give us £1,000”, but we believe it is crucial to our independence that we should retain wide sector support and to be beholden to anybody.

Well those are our funders, and anybody who funds us who does not want to remain anonymous goes up on the site; if they have got a smart coat of arms, that goes up on the site too. You need to visit it to see them all.

A huge thank you to those who got things going, and particularly to Laurie West-Knights QC, who is here tonight, without whom at the English end none of this would have been possible. It was his energy, his dream, which drove the Chatham House conference, which drove the getting of the original funding. He was a trustee for the first years of BAILII and we owe a most enormous amount to him. I am really pleased he is going to be on our platform tonight.

And Andrew Mowbray and of course Graham Greenleaf and Philip Chung of AustLII. Graham came and was the star turn, as those of you who were here earlier tonight heard, at the Chatham House meeting. But then Andrew, with help from Philip Chung, suddenly, without reference to anybody, got BAILII going in an astonishing way, in his spare time, his free time, his leisure time. All through the night he was getting BAILII up and running in Sydney, and BAILII was up and running from Sydney for a year and a half, until we got our tackle in order in this country and took it over. So Andrew remains as trustee. He spoke at our last relaunch, and we are phenomenally grateful for everything he has done.

And then a big thank you to the Institute of Advanced Legal Studies – Jules Winterton is with us here tonight – and to Cork University – John Mee cannot come but he has a representative here tonight – for providing us with a home. We are very grateful for the work which John has done in Cork in processing the Irish material which comes to the site. And I remember one of the exciting things, which Ronan Keane will probably latch on to later on, at the Chatham House meeting was when we saw that we could get Ireland on board too. It would be a website for all these islands, and the statutes and case law of all these islands. We were thrilled that right from the start Ireland were enthusiastic participants in the BAILII dream. We are also thrilled to have their former Chief Justice, who retired only a month or two ago and who has been a tremendous supporter of BAILII, speaking to us a bit tonight from an Irish perspective.

And then thank you to our wonderful staff of three. Those of you who saw the presentation earlier this evening probably thought that we had huge battalions putting the judgments from all over everywhere onto the site immediately. We have a staff of three: Joe, Roger and Vicky, and we are really grateful to all of them; doing a wonderful job, day after day, all through the year, monitoring and maintaining and improving the flow of cases; maintaining and improving the software we use; and generally making BAILII possible.

A thank you, too, to the international trustees who have kept the faith. When you go to the BAILII site, you will see the vision we all have, the belief – the passionate belief we have, that primary sources of law should be free to everybody and that applied technology is the way to achieve this.

Well, you know about the programme. I am going to stand down in a minute. We are going to hear the Government’s perspective. We are then going to have a perspective from both Ireland and Wales, as BAILII is very, very much a joint effort. And then a panel, an international panel, fielding questions from all of you, starting with a presentation by Graham Greenleaf about what WorldLII is up to. And then, at the end of the evening, the one and only Richard Susskind, who has been an eminence grise, will be talking a bit, before we start drinks again and cut the cake, about what Government is doing in terms of making information available free from his perspective as the chairman of an important committee.

When we ask a Minister to speak, it is always a little bit dodgy as to whether they are actually going to come. I have forgotten who we asked for the initial meeting but he or she could not come, and Amanda Finley, a senior civil servant, stole the show and then chaired the early meetings of steering BAILII group, in her office when we were trying to get things going. Last time, Michael Wills, the Minister, did come and was enthusiastic about everything he saw and heard. I have got absolutely no doubt that that evening was instrumental in the Government recognising that it should be an important part of their policy that they should make the case law free to everybody, and not muck around as to whose budget help was to come from.

Tonight, sadly, Baroness Ashton cannot come because she is exposed to a three-line whip. For those of you who know anything about the House of Lords, the Government does not have a built-in majority there, and late last week I heard that she could not come. But her loss, and it is her loss, is to a great extent our gain. Dominic Hartley, a senior civil servant from her department, who has been the most enormous support to BAILII ever since it started, will be delivering the speech he had written for her. So whether you think this is Dominic or whether you think it is Baroness Ashton who addresses the panel this evening from the department, it will be much the same product.

Dominic is going to talk about electronic service delivery within the UK legal services market. He is head of technology at the department. He has been in government IT since the 1980s. He was in the forefront of that rather enterprising group — I have forgotten what it was called. Richard Susskind and Brian Neill were deep into it and they produced an extremely expensive consultation paper about all they were going to do with IT and the law by the end of 2010.

He has been in charge of the DCA e-business strategy. He is involved in a lot of the things which he is going to talk about tonight in the 15 minutes we are going to give to him. He is, if I may speak of myself, a great personal friend, but I know that he is also an enormous friend to everything that we have been doing and, in a civil-service type of way, he has been a great enabler for what we want to do.

If Dominic has not run away after that acclaim. Where is he?

MR DOMINIC HARTLEY: Thanks very much, Henry. You have been typically generous introducing me, but I know some of you will be disappointed that the Baroness Ashton is not here this evening. That disappointment is shared by her. She did very much want to come along and talk to you this evening.

Having said that, I am particularly glad to be present and I would have been here anyway. I have followed BAILII since its inception. I think it represents a very special achievement which has made remarkable progress over the last five years. In my opinion, with its ever wider, ever richer scope of information, it is a real world leader in the world of e- service offerings. I hope you will forgive me if I reflect a little bit on what the DCA has done in a similar timeframe and how that complements the achievement that BAILII has made.

The web, I think that goes without saying to everybody here, is the most wonderful thing. I still never cease to be amazed at the amount of material that is available on it and how we ever managed before it came about. One of the downsides I have found however is that there is a lots of information there, that has not be not pruned and which can come back to haunt you. when I came to think about what I might talk about this evening, I did look back with some nervousness to some of the papers that were published — Henry has referred to some of them — five years ago, and I particularly alighted upon one produced by the Cabinet Office which was effectively the strategy for how all government departments should go about delivering these services in the brave new world that was the information age.

Perhaps I could just quote from some of it because it is still very relevant, I think:

“E-government offers huge opportunities to improve public services for the benefit of citizens in terms of offerings that are more convenient, more joined up, more responsive and more personalised. That deployment must be driven by the use of citizens and it must be used to join up service provision across departmental boundaries, to break down silo-based delivery networks and to allow citizens to interact with government whenever they choose, whether at home, at work or on the move.”

I read that and I thought that was quite daunting, and I started to think about what we had done within that timeframe, and actually, the more I thought about it, the more a positive story emerges, and I would like to take you through that very quickly, if I may.

The justice system itself has some particular challenges. I am sure all of us in this room could list a number challenges that might hinder the development of effective e-services. For me, there are three I would like to emphasise.

The first is that although it might be difficult for some of us in this room to put ourselves in this position, for a lot of people that use the justice system, it is a once in a lifetime experience, and for those people, efficiency, in terms of cost and speed of justice being delivered, needs to be balanced against the need for justice to be done and of course for justice to be seen to be done, and that can be a big challenge when one is thinking of how one actually goes about rendering some of the services electronically.

Second, which you will have heard officials from the DCA talk about before, I am sure, is the historic very low level of investment in IT that has been made across the criminal justice departments. Less than half the public sector average until the start of 2000.

Finally particularly true of the criminal justice system, the machinery is very large; it is highly federated, and the joining up that was referred to in the quotation that I just read is a very real challenge for us to meet.

So how do we go about it? Well, I think if you look at the, as it were, portfolio of e-service offerings that the department has produced in the last five years, I think you can see a progressive, four-phase approach in terms of the way we have taken the information we have had and the way that we have actually built upon it.

Very briefly, I would just like to illustrate those four phases with an example from each.

First of all, we thought about how we should expand the range of information provision that we can provide; information that we already have, and how it could be manipulated in the most useful way. At the time we started to think about this the Community Legal Service was also coming into being. That required a web presence, and a lot of thought went into what that site would actually offer.

CLS Direct, as the site is now called, does a number of things which were a first for a Government justice site at the time. Clearly it provides information about the Community Legal Service.

It also provided a directory of quality mark solicitors and advice agencies searchable in a variety of ways, by postcodes, in terms of locality, by specialism, et cetera, et cetera, and that was fairly unusual at the time. It also offers an advice search facility and that provides structured and searchable access to legally based information on about 250 websites.

Perhaps the most striking of all, and rather salutary from my point of view, one of the most successful aspects of the site judging by the feedback we got was the fact that a government website provided a lot of the information in five community languages.

So that was really about how we expanded the range of information provision.

The next thing we did was to think about when it might be appropriate to give people an experience that is not based on text but allow them to visualise things? We did that via a project which provided an on-line tour for court users, particularly for witnesses and jurors. Again, as I think you can probably imagine, appearing in court is often a daunting experience. A lot of work has gone into trying to make that less traumatic for the people involved, and there has been a programme of pre-trial familiarisation visits which has been built up over the years, and they have proved very successful and very constructive.

We complemented that with a virtual tour, which is essentially available on the Court Service website and gives you a 3D tour of a court, allowing anybody that uses that to know essentially what to expect when they turn up to court. It has proved very successful, not least because, despite the excellent programme of familiarisation visits, there are not an insignificant number of people who cannot take those up for very good reasons of work or family commitments, and the feedback from those people has been very positive. Again, I think, a good example of how a very simple idea can be put to great effect via the use of IT.

The third phase, really, is what you might call dipping a toe in the water of the world of online transactions. We did this via a site called Money Claim Online, which I am sure a lot of you will have heard about and I will not dwell on it, but essentially what Money Claim Online does is to move away from an office based and time limited service — time limited because you can clearly only go into a court and use the building when the court is open — moving from that to a service which is available 24 hours a day, 7 days a week, 365 days a year; a service which allows to you issue a money claim but also, crucially, also allows you to defend one. It brings down the time of issuing a claim on average from about 15 days with the manual process to about three days. And I think its biggest tribute has been the fact that it has been very widely taken up. It is now, in terms of volume, our largest county court.

Finally, I talked a lot at the start about joining up, particularly a challenge for the criminal justice system. We have recently started to use technology within the CJS, something called Xhibit. Xhibit stands for Exchanging Hearing Information by the Use of Internet Technology and what it does is to provide realtime court hearing information over a variety of channels to a variety of different users. So within the court precincts information about hearings is displayed on plasma screens. Information is given to other agencies within the CJS, on the web, via email, via SMS text messaging and to wider criminal justice users. I should add that we have worked in close cooperation with our colleagues in CJIT on this project and much of the dissemination of information from Xhibit is via the CJS Exchange Portal which they have developed.

XHIBIT addresses one of the chronic problems within the criminal justice system that we have which is about resulting and how long it can sometimes take after a sentence is passed for information about the sentence to be relayed to the appropriate part of the CJS once the court process has finished.

Xhibit does a lot to improve that process, for example helping to speed up delivery of information to the Police National Computer, and those of you that have read about the Bichard Inquiry will understand the significance of that.

It extends the range of court lists that are available and provides information which has not hitherto been available on those lists.

It addresses some of the problems associated with ensuring that there is a pre-sentence report for the Crown Court and, as a result, fewer hearings are going to be adjourned.

It has been piloted at Snaresbrook Crown Court, which is the biggest stand-alone Crown Court in the country. I think it is true to say that during the pilot evaluation we have come across some very significant benefits for the CJS as a whole. Subject to approval of that evaluation, we hope that Xhibit is going to be rolled out nationally to all of the Crown Court sites in the country.

So that is a very brief whistlestop tour of some of the highlights, as it were, over the last five years. In the spirit of celebration that Henry mentioned, I do believe these are all significant achievements. All have won awards of one sort of another. Xhibit as recently as last week was winner of the first CJS award for innovation, I am pleased to say.

However, as a government official, I will be the first to say that we certainly should not be complacent about what we have done. There is an awful lot more to do as I am sure all of you will recognise, and we have plans in place to start addressing some of that.

I would also say that these e-government services are a very good complement to the first rate and more specialist service that BAILII offers, and I think they sit well together. They co-exist excellently. In conclusion I think we can say with certainty, that the next five years will be just as exciting as the last five, if not more, so and I would like to wish the BAILII trustees and all its supporters the very best wishes for continued success during that time.

Thank you very much.

LORD JUSTICE BROOKE: I will say something while our next two speakers come to join me at the table. I stood down as “judge in charge of modernisation” in the summer. At least two people tonight have said they have not seen me looking so relaxed for years, but what that enormous job — and I will be giving a public lecture about it at the end of the month — did show me is how phenomenally lucky we are with the quality of people who are in the department’s e-delivery group. Dominic was very modest. They have won more than one prize. They have won a Cabinet Office award for the best delivery of a major IT project in a year and they have got an international reputation for what they are doing.

In this whistle-stop tour of the islands, we are privileged to have Ronan Keane to talk to us about BAILII and the delivery of legal information online from the perspective of a man who was Chief Justice of Ireland until very recently. He will be followed by Carolyn Kirby who, as many of you will know, is a recent President of the Law Society and now is a very vibrant figure in the Law Society in Wales. She will be letting off a number of her frustrations in the second role, if not in her first.


MR JUSTICE RONAN KEANE: Thank you very much, Henry. I would like to thank you the trustees of BAILII for inviting me to be present here this evening and to say a few words about the Irish perspective on BAILII. It is very pleasant indeed to be joining in the fifth birthday celebrations of BAILII, although I was not there on that historic evening that Lord Justice Brooke has so eloquently spoken of when the idea was launched. And it is indeed extraordinary, and in some ways, I suppose, redeems one’s faith in human nature that a project can be so successful when driven by nothing but the dedication and commitment of the people concerned. In other words, we see the contrast with the commercialized providers — and it is no reflection on the commercial providers of online legal information, who provide a very important service, but they are very properly in business and are driven by the business motive of making money (and there is nothing wrong with that). But BAILII, after all, has come to its great success over these five years in having a different mission in life and that is to make sure that legal information is accessible to everybody who needs legal information; be they judges, be they lawyers, be they persons engaged in the teaching or research of law, or be they the ordinary citizen who wants to and is entitled to find out what the law is on any given topic.

Now, since we are in the anniversary business, I suppose I will be forgiven for recalling that it is almost exactly 50 years since I was called to the Bar myself in Dublin, and that pregnant anniversary has naturally put me into an even more reminiscent mood than the traumatic experience of retirement would normally put one into.

When I saw the world as unveiled by Henry Brooke this evening, in all its formidable panoply worldwide, its complexity, my mind went back to the days when I went out as a youthful barrister on circuit — in what would be the Irish equivalent, I suppose, of the Crown Court here in England, the session of the circle court dealing with indictable crime. The registrar, the motions on the list having been dealt with, then said, “Any criminal issues to be tried on indictment?” and I answered the question by saying, “There are no criminal issues to be tried on indictment, my Lord”, and he then turned round and produced from the drawer a pair of white gloves and he presented these to the judge, and this was a ceremony which may have existed in English society, I do not know, but it certainly existed in Ireland for generations.

The judge, who had presumably been apprised of this happy event that he had no crime and did not have to spend days instructing juries on the ramifications of the criminal law and ruling on difficult matters of evidence then only had to deliver a faintly pompous address — but then pomposity is an occupational failing of judges, I am sure. We cannot avoid, however much we may wish to, a certain degree of pomposity on occasions such as this. The judge would begin his few remarks by praising the law-abiding qualities of the people of Roscommon, or whatever county it was in the Irish Midlands, in that there was no indictable crime to be dealt with, and then he would rather take away the good of that, in one sense, by delivering some robust praise of the constabulary for their efficient prevention of all crime in the area. To mention that, of course, is to recall, and alas, a totally vanished world. Now that same circle court has to deal with a huge range of crime which would once have been unheard of. No doubt the white gloves are there but are yellowing with the years and alas are never called upon.

And now, the volume of crime has brought with it the huge volume of litigation. But, of course, that is only a tenth of the story that has happened in my lifetime. There has been the explosion of judicial review in both these jurisdictions; in our case, helped on by the benign climate, if that is what it is, of a written constitution with a Bill of Rights existing and the subject of much jurisprudence long before the convention of human rights became part of the law of any of our jurisdictions; a fairly recent development, as we know.

But in all sorts of spheres, new branches of law kept opening up. Family law became infinitely more complex. And, of course, we have seen areas such as competition law and, more recently, asylum and immigration law producing endless, it seems, decisions about which not merely practitioners have to know, but people who work for small reward in those fields also have to know.

In all of this, BAILII plays an immensely important role in making sure that decisions, which otherwise one would have to track down in some series of reports, are available online to the concerned person, whatever may be their reason for seeking out legal information. Now, the name of the foundation is, of course, the British and Irish Legal Information Institute, and that reflects the fact that since its foundation, and above all due to the energy and dedication of Dr John Mee of the Department of Law of University College Cork, this has been a project in which we, in our much smaller jurisdiction, have been happy to make a contribution.

I understand from what Lord Justice Brooke has said tonight that John Mee is unable to be present tonight. I know he was hoping to be here and it is a source of regret to me that he is not here because he can speak with far more authority and knowledge than I can of the actual work of the Irish end, if I can call it that, of BAILII. That essentially consists in ensuring that there is available online a database of judgments of the Irish Supreme Court, dating back to 2000 and 2001, together with a number of cases from the two earlier years, 2000 and 1999, and then in the case of the other superior court in the Irish system, the High Court, a collection of over 1500 decisions going back to 1997.

Now, as yet, there is no official website of judgments of the Irish superior courts, although it is hoped, I understand, that very shortly all Supreme Court decisions will be available on the Court Service website — that is the Irish Court Service website — as soon as the judgments are delivered. And I know that John Mee has gone to considerable trouble to co-operate with the Irish Court Service and the staff of the Supreme Court in ensuring that there is a relatively painless transition to enabling all this material to be available instantly and to be fed into the general BAILII network.

In a much smaller jurisdiction like Ireland, the availability of unreported judgments, judgments which do not appear in the official reports or any other series of reports are a matter of crucial importance. Because of the much smaller jurisdiction we have much less in the way of series of reports than would be available in the United Kingdom. Accordingly it is of the highest importance that practitioners and others who have to know the law do not have to wait until judgments appear in official reports. And in the modern era, and in today’s world, that inevitably means being able to access them online.

So that availability of judgments of the Irish superior courts in recent years, the availability of that as a database, emphasises what was apparent from Lord Justice Brooke’s address at the beginning of today’s proceedings: namely, the multi-jurisdictional aspect of BAILII. It is not simply concerned with judgments in the United Kingdom; it takes on board judgments from the Irish courts and, of course, we have seen its links demonstrated to other information institutes throughout the world, and that is an aspect of its activities in which we are very happy to play a small but nonetheless, we hope, helpful role.

I am aware that Dr Mee has also established the Irish Legal Information Initiative, which is a separate project of its own but is intended as supplementary to the contribution — the Irish contribution, as such — to BAILII. It includes material which would not be readily compatible with the BAILII remit, such as leading Irish cases of the past which have been indexed and digested, and a periodicals index of Irish periodical legal literature, but it is, from the point of view of Irish law, of course, a very useful supplement to the activities of the Irish aspect of BAILII.

I have to say that it was borne in on me as we listened to Lord Justice Brooke today that the whole history of Ireland‘s involvement in BAILII is really just another reflection of the much closer degree of cooperation there is between the Irish jurisdiction and the neighbouring jurisdictions in the United Kingdom. Since we went our separate way in 1921, that cooperation has not always existed, and it was particularly unfortunate that we did not have the close relationship with our immediate neighbour in Northern Ireland that we should have had considering we share the same island.

That is, I am happy to say, rapidly changing. We co-operate with the other jurisdictions in the United Kingdom — the three jurisdictions, England, Wales, Scotland and Northern Ireland, over a range of matters. Not least the judicial studies institute of Ireland has the best relations possible with the Judicial Studies Board here in England and Wales, with the Scottish Judicial Studies Board and similarly with the Northern Ireland Judicial Studies Board.

The more we become immersed in Europe, in the European Union, and the more laws are affected by what happens in the European Union, the more it is borne in on us what an important common heritage the common law is for the four jurisdictions in these islands; how much it serves to bring us together — that is always apparent when we meet at a European Union level. The identity of interests very often between the four jurisdictions in these islands is apparent. That is no reflection on our brothers and sisters in the civil law countries; it is just that they do things in a markedly different way. But these two traditions can, as we will see, happily co-exist, but it means that there is a degree of cooperation and understanding, I think, between our four jurisdictions which did not always exist in the past.

But that is simply a general reflection prompted by tonight’s happy event, and I do not want to stand between you and my colleague from Wales any more. I really wish to thank again BAILII for doing me the honour of reflecting on the Irish contribution to BAILII, and we look forward, not simply to the next five years, but the next 50 or even 500 years.

LORD JUSTICE BROOKE: It has been a huge honour to have Ronan Keane speaking to us. One of the happy features of BAILII is that we have always had the enthusiastic support of the Chief Justices in each of the jurisdictions, and of course the senior law lord as well, and we have always had really enthusiastic support from Ireland. I should have mentioned our gratitude to both the Irish Bar and the Irish Law Society for their financial help for BAILII as well.

Part of my roots are in Ireland on both sides of the border. A lot of my roots are in Wales and it is a huge privilege to ask Carolyn Kirby to speak to us from a Welsh perspective.

MS CAROLYN KIRBY: Thank you. Can I join everyone else in congratulating BAILII on its first five years. I proudly wear the badge of “I was at Chatham House and I didn’t cry”.

It is — perhaps I should say at the outset, with my Law Society hat on, that BAILII is an enormous help to solicitors, particularly, of course, solicitors who do not have access, particularly on financial grounds, to the huge commercial websites which certainly small firms of solicitors, sole practitioners, people working from home and so forth, absolutely could not afford. And BAILII, therefore, is an enormous help to solicitors right across the board. Large firms like this, of course, benefit as well, but I think it is particularly the small firms who benefit the most.

But I have been asked to speak about access to the Welsh legislation. This will be a brief run through the frustrations which Lord Justice Brooke has already referred to. The run through might not have been quite so brief had I not realised that there was a transcript being taken of this contribution and, given that it will appear on the BAILII website, I think perhaps I ought to be a little more careful than I was going to be about what I might say. And when I talk about access to the Welsh legislation, I did read something in my research that one of the BBC commentators, I think it was Gavin Estler, said that the two most boring words in the English language are Northern Ireland. I have to tell that you in Law Society terms the single most boring word is Wales. You only have to mention anything coming from Wales and everybody completely blanks out. Please don’t do that, because the Welsh legislation is not only important for people practising in Wales, but it is important for practitioners, lawyers of all types, in the UK and across the world who have clients who have legal interests in Wales. And it is the significance of that Welsh legislation which gives us something of a difficulty.

I hope I might be forgiven for taking a brief detour to understand the nature of Welsh devolution in terms of legislation, because I realise that this will not be uppermost in your minds. You won’t have a copy of the Government of Wales Act tucked neatly under your pillow for those long nights in the winter and I wonder if I can be forgiven for reading briefly from a address given to the British and Irish Association of Law Librarians by Winston Roddick, who was at the time Counsel General of the National Assembly for Wales in June 2003, because I think it neatly encapsulates the nature of the problem that we have, and I could not improve on this description, and therefore I will read what he said to them:

“There is no doubt that this problem has become worse [that is the accessibility to the Welsh legislation] but it has become worse since devolution, and I am sure that it will become a serious one unless steps are put in place immediately to deal with it. Potentially it is much more serious a problem than that of ascertaining from a single Act how, if at all, it applies to Wales. The ascertainability problem arises out of the nature of the devolution settlement, and in particular out of the process by which the assembly acquires its powers.”

This is where you have to start to concentrate:

“That process begins with the identification in the 98 Act [that is the Government of Wales Act] of the fields of responsibilities but not the powers from which functions may be transferred to the assembly. Although the Act identifies no less than 18 fields from which responsibilities might be transferred in the first transfer of functions order, it does not devolve all responsibilities in any field. For example, not all responsibilities for agriculture or health in Wales have been devolved.

“The first transfer of functions order transferred a very substantial number of functions. Since then, further slices of powers in those and other fields have been transferred by transfer of functions orders and primary legislation. There will be more, I am sure. What the assembly therefore has is a collection of powers given to it piecemeal in a number of Acts and a number of transfer of functions orders. This process of accretion whereby the assembly’s powers grow by gradual additions occurs through Acts and orders which might at the same time take back, modify or repeal powers transferred in earlier orders and Acts. In addition to and lying on top, so to speak, of these slices of powers confirmed in the manner I have just described will be the secondary legislation made by the assembly in exercise of those powers.

“To ascertain the law on any subject as at a particular date, it is necessary to work through all these slices.”

And he goes on rather interestingly:

“Access to the law is a basic right. If it is so unreasonably difficult to ascertain what it is, the validity of the law itself becomes questionable.” An interesting statement from the Counsel General:

“What then is the solution?”, he says elsewhere.

“Welsh law is still too fluid and unsettled for consolidation.”

And further on again:

“We are pioneering a new database, an electronic index. Without such index, the knowledge and understanding of the law in Wales is likely to prove elusive.”

Well, I think those of us who practise in Wales can back him up on that statement, and I have to tell that you that database still does not exist, not in a searchable form, certainly not in a form searchable by subject matter.

And the availability of a good index is the major part of the problem. BAILII can only be as good as the primary source of its information allows it to be. And the UK legislation, the primary legislation from which Wales draws its secondary legislative powers, has no standard method of alerting readers to the scope for secondary legislation.

Once you have established, if you can establish, that there is scope, there is no reliable method of establishing whether it has been exercised. And if so in what forms, when, how many times, and what has been amended or repealed.

The only Welsh legislation available on BAILII are the statutory instruments. They are listed alphabetically, so you need to know what you are looking for, which is not easy when so many of them have a very similar title.

Some statutory instruments have no title at all, and they are all listed under “S”. Statutory instrument with a number. Now, you may find the statutory instrument you need, and you think that that is the current position of the law, but it may have been amended by a further statutory instrument which can only be found under “S” with a number. Or, if you are looking at the chronological list, not the alphabetical one, you might miss it because there are so many statutory instruments with virtually the same title.

Or the secondary legislative powers may have been exercised in the form of circulars or guidance. This is where it gets extremely sticky, because, even if you think that what you want is in a circular, you cannot access the text of the circular on the assembly website, and therefore, obviously, you cannot go on to BAILII because the circulars are not there. And you cannot read the text of an assembly circular on the site; you can only order it online and it will be sent to you electronically or in the post. So of course, if you are doing a piece of research, it can take days, if not weeks, to find what it is you want because you cannot look at it online. And a surprising amount of secondary legislation is contained in circulars and guidance.

It is unfortunately the case — and I do not blame the assembly here; they are a very, very new legislature, and a lot of people are still learning, I am afraid, what constitutes legislation and what does not, and there are some pieces of legislation which I have to tell you consist of nothing more than a piece of paper which is in the desk of a official and therefore is not published in any way.

The Law Society has been in discussion with the assembly since Day One, stressing that we need to be able to access the law by subject matter. But the legislation, where it is disseminated, is disseminated very much from an in-house perspective. They know what they are looking for because the members of the Counsel General’s staff know exactly which piece of legislation they are looking for. They know the title and they know the number, and yes indeed it is there. But of course that is not how lawyers work, and if we don’t have a index from the perspective of the subject matter, we cannot get very far. I have to tell you that we did try to get the assembly into BAILII from the outset. We consider that the structure of BAILII would actually have helped the assembly to prepare its legislation in a form which would have been much more accessible to the profession, and in a much more cohesive way. I think the main sticking point was said to be the bilingualism of the assembly legislation. I think that from all that we have seen on BAILII so far, that would not have been a problem.

I have to say that the assembly has the same frustrations with the legislation as we do, and I have been reading an article by the chief librarian of the assembly who says that finding the Welsh legislation feels more like detective work than librarianship. Bearing in mind that she has a considerable staff at her disposal and that that is all that they do, I think you can have some sympathy for those of us trying to find out in our offices.

So what are we doing to help them improve, because we do want this to be a collegiate process. We need to get access to the legislation; they are working very hard to produce legislation, but you cannot actually get access to it.

We have talked to the law officers in the past, particularly the late lamented Gareth Williams, who was extraordinarily helpful, having steered, of course, the Government of Wales Act through Parliament. And we asked if there could be a improved signalling within primary legislation to let us know what the application was going to be for secondary legislation in Wales, and he particularly talked to Parliamentary draftsmen and matters did improve after that. But, of course, law officers have no authority in Wales. The counsel general has that role. Regrettably, that post is currently vacant, has been for a year or more, and there is no sign of anyone appointing a new counsel general. So that gives us something of a difficulty in knowing who to talk to about improving these problems.

We are in correspondence with the deputy presiding officer, trying to highlight the problem, and as part of the Law Society’s better law-making programme, we are engaging the assembly in a better law-making seminar in the Spring, which we hope may highlight some of the problems that we have.

But in the meantime, I think the message I need to leave with you is a warning, really, to users of the BAILII website that the statutory instruments that you see are far from the full story, so please be careful when using Welsh legislation on the BAILII site. Thank you.

LORD JUSTICE BROOKE: That was really valuable and helpful. BAILII has always been ready and willing to help. I hope that in the next five years we may be more successful in helping than we have been allowed to be in the last five years. And I am really grateful for that insight into the position in Wales. I am afraid ageism, which I am sure is practised over the border, will stop me getting the vacant job of whatever it is as a retirement job.

If I could ask the panel to come up. I am sorry we are running a little bit late. Laurie and Graham and Alan and Dominic, as you are not a Minister, can you join us on the panel? There is room for all of us.

What we are going to do is to ask Graham to speak for a short while, bringing us up to date from across the world. It was Graham who enthused us five years ago.

Graham Greenleaf.

PROFESSOR GRAHAM GREENLEAF: I am just trying to get BAILII up as the backdrop, but while Joe is doing that, I might just get started.

Sir Henry and former Chief Justice Keane, ladies and gentlemen, thank you very much for inviting me here to speak this evening, and on behalf of Andrew and Philip and myself, who I guess could be described as BAILII’s godparents from overseas, we would like to wish BAILII a happy 5th birthday.

As you know, five years ago, I had the privilege to give a pre-natal pep talk on behalf of a unnamed child who we proposed should be of British and Irish parentage. Well, my contribution to BAILII, by and large, stopped at that point, except, I think, for one vitally important matter, and that is I can claim to have coined the name “BAILII”. Perhaps not such a great name, but it did save you from Laurie West-Knights’ favoured name, which was Ukulele. People have sometimes asked why BAILII, apart from the acronym, and we thought it sort of had suitably ambiguous connotations. You know, if you were British, it could remind you of the Old Bailey, and if you were Irish at least it could remind you of Bailey’s as in Irish cream, if nothing else. So that is how that little element came about.

After the Free the Law meeting five years ago, there was a five-month gestation period before what became BAILII was launched on the world, and there is a very complicated and sort of human story with lots of events, both frustrating and numerous, along the way, and we have promised Steve Saxby, the editor of Computer Law and Security Report, that we will write “The Birth of BAILII” for publication in one of his forthcoming issues, as seen from our antipodean perspective. But I thought I would just limit myself to one anecdote this evening from the birth of BAILII. I am influenced to tell this one by Professor Larry Lessing’s most recent book, where he says that all major invasions in the provision of information this century have begun with a act of piracy, and BAILII was certainly no exception to Larry Lessing’s rule.

Because, in order not to lose the momentum set up by the Free the Law seminar in November, it became necessary in the early months of 2000 for us in Australia, and particularly Andrew Mowbray, to put together a BAILII prototype very quickly to keep the momentum going. But we did not have any UK data at all. We were in fact getting a sort of proactive flow of data very early on from the Irish courts in particular, but that was not yet happening in the UK. So our only resort was to go and, I guess we could say, borrow every scrap of UK case aw and every scrap of UK legislation that we could find on any website — any official government website, I should say — from the UK.

Even from a distance, we were a little bit worried about doing this when we sent out the email to Sir Henry and the others of the BAILII steering committee, as it was called at the time, in informing them that they had a nice logo that they had not really seen before and they could make of it what they would. We hoped they liked it — and the 15 databases in this BAILII prototype; and we just waited to see if the sky would fall in.

The next morning, I received an email from Carol Tullo, who was then the controller of Crown copyright, and I, with some trepidation, opened up Carol’s email and she said she was very pleased to receive such a clear explanation of progress in the development of BAILII, and she went on to point out a couple of small errors we had made in attributing data to particular UK institutions which we could fairly quickly correct.

So I looked at that and I thought: well, I think that amounts to an implied licence. So I think that is actually the legal foundations of BAILII, and as far as I am aware, probably like AustLII, there has never been anything really more formal than that in the provision of data from the Crown to BAILII.

The reason I raised this particular anecdote is that, if I recall correctly, the point on which I finished my Free the Law talk was in saying that the most important single ingredient needed to create a British and Irish equivalent of AustLII was just simply goodwill on the part of those who controlled the data, and if you had that, everything else would fall in place.

Carol’s email exemplified that and the cooperation, in particular, of all of the courts involved in providing data and then willingly adopting a very coherent court-designated citation system later, were all really good examples of just the goodwill that could put together a really effective system.

I think it is that sort of goodwill from both UK institutions and Irish institutions that really deserves the main congratulations this evening, because that is where it comes from.

All that by way of preface because what I was supposed to talk about in the few minutes this evening was the relationship between BAILII and WorldLII, the world legal information institute. So I am just going to say a couple of things about that relationship.

Back in 1999, before the Free the Law conference, AustLII was a little bit like — I guess you could say like socialism in one country: possibly interesting but arguably the product of peculiar and non-reproducible circumstances in an odd country at the bottom of the world. And certainly not some convincing recipe for world revolution or anything like that. In fact, over half a decade had gone by since Cornell University had established the first of these legal information institutes. We did not invent the name Henry; we have to credit Tom Bruce & Co with that.

But over half a decade had gone by and you could not say that legal information institutes and free access to law were really proliferating around the world. And we did not know how to break out of that. And then the opportunity arose for us to be involved in the development of something equivalent to AustLII here in the UK. And so the birth of BAILII was therefore of great importance to us at AustLII; more important, really, than any of the subsequent developments in legal information institutes, because it constituted proof of concept. It showed that the software that Andrew and Philip had developed, and the approach we had taken to try to create legal information institutes, was not a fluke and was capable of being useful in places other than Australia. And the fact that UK and Irish law was available via the same technical framework as Australian law, then made it just so much easier to gain the goodwill of Chief Justices, legislatures, Law Reform Commissions and others in other countries in order to create CANLII, PacLII in the Pacific islands, HKLII in Hong Kong, SAFLII in South Africa and increasingly more as time goes by.

So in that sense, Sir Henry, BAILII really led directly to WorldLII as well — in the sense that WorldLII provides one portal that is a combined interface to all of these legal information institutes. So, you know, the world of free access to legal information owes a lot to what happened from 1999.

But there is also an ongoing relationship, of course, between BAILII and WorldLII as well, and I want to do one simple demonstration of that sort of thing. I will just do a fairly straightforward search on BAILII for anti-circumvention legislation in relation to copyright; something that exercises a lot of our minds these days. So I will search for “copyright near circumvent”. We will do a search for that, and I get a very unhappy result. Never do live demonstrations if you have not tested them out very shortly beforehand. And I have absolutely no idea why that is not working. It may well be there has been a bit of technical fooling around being done to make the ‘near’ operator not work quite how it normally does. Now I get a much better result when I tell it that what I mean by “near” is within 50 words.

So we get the Sony case here in the UK and we get the precise provision there in section 296 of the UK legislation dealing with anti-circumvention and other good things.

Now, the relationship with WorldLII comes in when we ask, as we might in some circumstances, what is happening in other jurisdictions around the world. And because here at the top of the page on BAILII we have the option to repeat our search over WorldLII databases, having found nine items coming from the UK, we can simply now send that search off to WorldLII and we have found 58 items, including the nine from BAILII, but also including what is at this stage the decision of the most senior court in Australia on the matter so far, the Sony and Stevens case, now filed at the High Court. And the precise section from the Australian legislation dealing with anti-circumvention, and the precise section from the Irish legislation dealing with it, various learned journal articles, the exact section from the United States code dealing with that matter. And then, to our surprise, perhaps, we find that both Fiji and Samoa have copyright legislation that has anti-circumvention provisions.

I will just take that sort of one step further. We are getting a mix of legislation and all sorts of other materials here. I am just going to take that search and go to the front page of WorldLII. If I wanted to do something slightly more sophisticated, I would go to the advance search form on WorldLII, and let us say that what I am interested in as a legislative drafts person is just simply to get the pieces of legislation from around the world that we can find in WorldLII dealing with anti-circumvention legislation. Instead of finding now 100 or so items, I think it was, including case law journals, et cetera, we now get 14 precise legislative references, probably from about 11 different jurisdictions, that give you a precise comparison of provisions dealing with anti-circumvention legislation and copyright. And there really is not any other research tool, I think, that can give you such a jurisdictional spread with such a degree of precision at the same time.

We have a limited number of countries in WorldLII at present, but it is growing as every month goes by.

But what that illustrates is the proper relationship between WorldLII and BAILII, in that it is not in any case true to assume or to assert that people doing research in Ireland or the UK might want to use WorldLII instead of BAILII. That would not be in the slightest bit likely to be how people will act. In most cases, the legal research you will want to do will be in a precise jurisdictional base, and the sensible place from which to do that research is a legal information institute that reflects the jurisdictional basis in which you are doing your research. And it is only in the exceptional case that you will want to spread the research more broadly into a worldwide comparison.

So “start local and then go global when it is useful for your research” is the right way to think about it. And it is also the case that something like WorldLII cannot exist at all if it is not for the enormous effort that goes into building national or regional legal information institutes, with all the specific domain knowledge that is required of how the UK and the Irish legal systems work, and the complexities of problems like Welsh legislation that you have to deal with — these things have to be built and maintained at a local level. But then we can add something extra on top of that through collaboration in a network and it is this global network of free access to law that is emerging through the collaboration of legal information institutes. I am going to finish now just with one last point, to indicate just one of the latest things that have been happening on WorldLII. On the front page here, you will see down the side, under “Projects”, “International decisions”. At the conference in Paris later this week, we will be launching the international courts and tribunals project, which is a collaborative project of the various legal information institutes around the world, including BAILII, on which some of these international court databases are based, and more of the European ones will be based in future.

What we have done over the last six months is created here, for the first time, I think, a single searchable location for what is almost the complete decisions of most of the world’s international courts and tribunals. So we now have 21 separate international courts and tribunals and in most cases they are complete decisions, such as all the decisions back to 1960 of the European Court of Human Rights and, as Sir Henry mentioned, the United Nations Human Rights Committee — I think I have to scroll down one more notch to get to that — yes, United Nations Human Rights Committee decisions from 1977 are there. So there are 20,000 decisions of international courts and tribunals, all searchable in the one location, all searchable in any combinations that you are likely to specify. And you can also choose, for example, just to search European courts and international courts and tribunals, or just African ones, or just ones dealing with human rights. So in terms of what has been pre-occupying us on WorldLII lately, this is the collection that gives WorldLII a identity of its own. But its essence is still as a product of collaboration of legal information institutes such as BAILII and the international network of free access to law that that represents.

Thank you very much.

LORD JUSTICE BROOKE: Thank you very much indeed. That was a wonderful insight into what is happening on a much wider scale. Well, I am afraid that we are running late. We have got a feast of things which we have been bubbling to tell you but somehow or other we have got to catch up. We have now got a bit of time for you to be able to ask questions of members of the panel, most of whom you have already seen. Laurie West-Knights, two to my left, represents England and I have told you all about him. Alan Paterson, two to my right, represents Scotland – he is one of the founder trustees of BAILII, a professor of goodness knows what at Strathclyde, President of the Society of Legal Scholars or something of that kind.

This is the time for to you ask questions about anything.

Any questions?

MEMBER OF THE AUDIENCE: Cambridge University Press. Also representing publishers association. So we congratulate BAILII on the first five years. I am just interested in the impression that publishers have perhaps that it is lawyers in practice and government and public use of law which is the focus of BAILII rather than academics and scholars and whether in your second five years you might look more at involvement of the academic lawyer in who you are serving and your content. Maybe that is a wrong impression but I am just interested in your policy on academic use.

MR ALAN PATERSON: Well, I do not think there is any intent to ignore the academic angle. As Henry mentioned, I am the President of the Society of Legal Scholars, which is the UK’s foremost learned society for legal academics, and we strongly support BAILII, and would have done so whether I was a trustee of BAILII or not. And our members are very keen users of databases to assist in research and teaching. BAILII allows access to innovative teaching since you can provide databases to students to do research without worrying about whether you are racking up the hours on your Lexis or Westlaw accounts. And so BAILII is very much a tool which our colleagues find very helpful.

MR JUSTICE RONAN KEANE: I think the study we did showed that the total of those affected was 38 per cent of those who visit BAILII come from the academic world, and there is a list of academic sites a mile long which access BAILII on a daily basis. What Alan says is absolutely dead right so far as our policy and wish for the trustees is concerned. The more we can be of service to the academic world, the happier we will be.

LAURIE WEST-KNIGHTS: Can I say something as a practising English lawyer? My own perception is that we are not really aiming at lawyers either. The vision behind BAILII is the citizen. Now, plainly, Joe Average does not spend a lot of his time wanting to look up statutes and cases, but those who act for Joe Average – CABx, under-resourced Law Centres etc, and Joe Slightly Above Average himself, are well capable of accessing material such as this.

It is interesting you should mention lawyers because it is now years — I thought perhaps 6 — since Geoff Hoon, then the Parliamentary Secretary at the Lord Chancellor’s Department — there must have been about 90 since him — said to me that my apparent passion for BAILII was in fact disingenuous because all I was really after was getting a freebie for the fat cats.

I reacted adversely to that suggestion, as I would now. But the fact is that the primary focus of BAILII is to get the basic raw materials available to people. It is, in fact, a mark of its success that people are looking for, as it were, meta-data – stuff about the law. But the principal focus must be to find the law: the cases and the statutes which are of interest to academics and practising lawyers, and Joe Average, bless him. That must be the primary focus.

BAILII has simply not had the money for the frills of meta-data, and if anybody wants to put the money up, I have not the slightest doubt it will be well used.


MS KATE SIMPSON: Kate Simpson, Matrix Chambers. I was interested on the AustLII website to see journals and other commentary materials and I was interested to know what the copyright issues are for publishers to provide that kind of information on BAILII, if at all.

LORD JUSTICE BROOKE: I think it depends, critically, on who the publisher is, and if they have the copyright and the writers do not retain the copyright, then they have got to show a willingness to make their material available to us. We are not in the business of going out and buying copyright material because at the moment we have not got the funds for it. Of course, if the writer retains the copyright, as one very often does when one writes for these journals, they have the first right of reproducing – and with their permission then we can reproduce material and I hope that we can go down the AustLII route.

I don’t know whether Graham can talk about the AustLII experience.

PROFESSOR GRAHAM GREENLEAF: Our experience has been that we mainly have academic law journals on AustLII, and the academic law journalists have generally been willing to provide us with a non-exclusive, of course, licence to republish on AustLII. Quite often, a year or so, or thereabouts, after the original publication print — and we leave it up to them as to how quickly they wish to provide the copy to us for republication.

The issue of the right of academics to republish their works for free access is becoming quite a serious one in the United States and elsewhere, and one of the great developments in this area has been the legal scholarship network, part of the social science research network. I am very happy to say that we have all 17,000 journal articles in the legal scholarship network searchable via WorldLII as well.

So, in fact, one of the copyright searches I did brought up SSRN articles and, at the meeting of legal information institutes in a couple of days’ time in Paris, one of the items on the agenda is to discuss among all the legal information institutes whether we will make as a new priority the inclusion of law journals, as many as we can, on the legal information institutes so as to make that one of new frontiers of free access to law.

So Alan, with your other hat on, I would be very interested to hear what the approach to that question is in the UK.

LORD JUSTICE BROOKE: Was there somebody over here? Yes.

MR STEWART DRESNER: I think a question probably for Professor Greenleaf. There have been discussions about the number of people who have accessed AustLII sites and WorldLII sites. Is there any attempt to track what types of people or actual people who are accessing the sites; some sort of profile showing the percentage of academic users and percentage of lawyers and judges and so on?

So there are two questions: first of all, the categories and secondly, do you get down to tracking the individuals because that would be quite interesting?

PROFESSOR GRAHAM GREENLEAF: From our end, the logs that we retain at AustLII and WorldLII, Stewart, all we know is what domain people are coming from. So we can tell you what percentage of hits we get from the domain and what percentage we get from Mongolia, say, or France, or something like that, but that is it. We do not have any means of tracking individual usage other than that, and absolutely no desire to do so.

There are some commercial internet ratings agencies that track usage by looking at ISPs’ logs and we subscribe to one of those and get some more information about how much usage we get compared to other services. So we know that AustLII gets basically about 30 per cent of all law related internet traffic in Australia; more, I might say than all the commercial publishers combined, but we are in a bit of an unusual situation there. We get a little bit of vague demographic profiling out of that. But not much. Not much.


LORD JUSTICE BROOKE: From a BAILII perspective, we did do a survey from those who cared to respond about a year ago. I have given you the figure of 35-38 per cent from the academic community. Over 50 per cent in total came from lawyers of one kind or another. Then there were the miscellaneous category called “other”, which I think also included judges, which was about 9 per cent. I think we will probably do another exercise like that in the reasonably foreseeable future. Those providing funding from the academic world are always keen to know to what extent we are providing a service to people in the academic world. That is the reason why at the poor end of the market we have to do this kind of thing and at the rich end of the market in AustLII, they don’t bother.


MR HENRY SCROPE: May I follow up something which Carolyn Kirby was talking about, and that was the difficulty of knowing what the law is now, when there are so many bits and pieces of legislation which you have to assemble in order to see whether something has been repealed, amended or whatever it may be. I believe there is a project on foot called the statute law database and I think the question is probably going to be for Dominic.

What I am really asking is: firstly, do we yet know when the statute law database is likely to be available? I used to ask — I rang up, I think, about every three years and was told it was about two years away every three years. Most recently when I rang up, I was told that civil servants were going to have access to it very shortly and that it would probably be made available to the general public some time during 2005. Also that there was likely to be free access to statutory material as it is now, but if you wanted to do a Patrick Moore type search and look at what the sky was like in 1993 or whatever it might be, you would have to pay, but it would be available.

Is that information correct and do we have any more up-to-date knowledge of when it is likely to happen?

MR DOMINIC HARTLEY: I know I should have checked this before I came out, it is a weak answer. The statute law database is not actually my direct area of responsibility, but what you have related sounds entirely accurate from what I have heard. I am happy to go back and to find out more. But certainly the notion that the “as is” material would be available free but that the historic material may be chargeable, is consistent with the policy I think that has been developed over a number of years.

The basis for that — whether or not you think it is defensible — is that the statute law database has been some considerable time in development. A certain amount of cost has gone with that, and clearly the value added part of what is being offered is that ability to take an historic snapshot of what the law was like at a particular time.

So I am afraid I cannot say much more than that, really.

LORD JUSTICE BROOKE: Somebody is waving from the back. I don’t know whether it is —

PROFESSOR GRAHAM GREENLEAF: May I just say something about that particular matter? Or two comments about the question of statute law. One is the simple thing that every single jurisdiction in Australia — the Parliamentary Council’s officers provide consolidated legislation immediately to the public as soon as a change is made to the law. In fact, it is so far from being rocket science that it is just completely humdrum to have completely free consolidated legislation in all jurisdictions.

The second thing is in relation to the point in time legislation. The Tasmanian legislature, has been providing a free access point in time system for some time — and they are able to do that because they control the production of the legislation and they have quite a sophisticated system to make point in time.

At AustLII over the last three years we have been working on an Australian Research Council funded project to produce a generic form of point in time legislation where we can take the legislation as we get it from each office of Parliamentary Council and turn that into a point in time form where you can just go into our representation of New South Wales legislation now — in a prototype system we are about to put up for the whole of New South Wales legislation — and just type in whatever date you would like to see a particular Act as at and it will produce the Act for you as at that time.

That point in time representation, we are fairly sure, will work quite adequately with UK legislation, provided just a stream of normal legislative data is provided, with sufficient frequency of consolidated legislation to create the point in time database.

So one of the things about legal information institutes is to keep on trying to raise the bar so that what might at one point have been regarded as value added services that can be charged for will no longer be chargeable. I think that will be the case with point in time legislation.


MR JUSTICE RONAN KEANE: Can I just say that in my own jurisdiction — I know from accessing it myself — that the Attorney General’s office does provide the database of all the Irish statutes and indeed the Irish statutory instruments. I do not say it is as sophisticated as the Australian model that Graham has just told us about, but it does seem extraordinary, when we are talking about BAILII and we are talking about the worldwide legal information services that we should be thinking of having available obscure articles — with all due respects to the academic community, I am sure they will not mind me saying this — but articles in the Kenyan Review or something commented on in an article in the Sowani Review, which was commenting on another article in the Kenyan Review — that these should be accessible, and that the actual law, as we have heard in the Welsh experience, should not be seems remarkable is a reflection on all our jurisdictions if it is not available. Those are the prime materials which should be available.


MR STEPHEN MASON: Stephen Mason, St Paul‘s Chambers. Two very short points, Sir Henry. The first is to Dominic, and that a request, really, which, if you have the ability to pass on to other departments, I would be very grateful. Where I live in Bedfordshire, we have steam, we do not have broadband, and when I download a 15-page document from a government website, with a tremendous amount of graphics, it takes me 20 or 30 minutes. I would be very grateful if the website designers would consider putting PDFs into just straight text files and omitting all the pretty pictures, please.

Secondly, I founded the E-Signature Law Journal this year and I would be absolutely delighted to include that on the website in about 18 months’ time.

LAURIE WEST-KNIGHTS QC: Bravo, and thank you. I just want to add a couple of words about the Statute Law Database. I seem to remember that Michael Wills, at the infamous meeting on 8th November 1999 left that meeting saying he would take away with him the feeling of the meeting: namely, that it was about time the statute law database was put into the public domain. [laughter] So it is a great laugh all round, but it is actually a scandal. It is not Dominic’s fault, bless his heart: well done for fielding that one — but the fact is that this is a thing which has been paid for and it has indeed cost quite a lot of money, our money, and it seems to me to be inexpressibly ridiculous that it continues to be withheld from Joe Public, including us, as a resource.

Indeed, we should not need such a complicated thing. Graham is perhaps being a bit over-optimistic. It is plain that we should have consolidated statutes: that is to say, e.g., the Criminal Evidence Act, whenever, amended from time to time. After all, lawyers are paid millions of pounds to do what? Sometimes just to establish the current statutory position on, say, revenue law or criminal sentencing law — what is the current statutory state of the law? Somebody will spend hours sitting down picking through enactments, many of which have not been implemented, which are then overtaken by further enactments which will have no commencement orders or be only partially implemented, parts of which prospectively repeal those parts of the earlier enactments which may or may not be in force.

At the end of that process the lawyer is in effect going to say: the current state of the law is this. He recreates the old statute, as amended: he by his own skill and judgment works out what it now reads. In Australia, the law officers in each jurisdiction do that as a matter of course. They publish what they intended to do. The end result – the statute in its amended form. Now, I don’t want to put millions of us out of work, but it seems to me that is a bit of work we could safely and morally lose. It is going to be complicated.

But it seems to me, given where we are, unarguable that the Statute Law Database should be in the public domain. The objections are all Treasury-driven drivel and it is a scandal that it is not.

MR DOMINIC HARTLEY: I am happy to agree to take away the mood of the meeting if I may — it will be in my outbox first thing tomorrow morning.

Just on the point the gentleman at the back made about the PDF files and the plain text, I absolutely agree with that. I will certainly take it back, and I have a bit more power personally to ensure we do something about that.

LORD JUSTICE BROOKE: Just one more question.

MR RICHARD COLE: Richard Cole, Templis Chambers.

Perhaps I can move from statute law to express some sympathy with the point that Carolyn Kirby was making about secondary legislation and to suggest that perhaps it is not just a problem limited to Welsh legislation, it is actually much wider than that.

To my mind, perhaps the most horrific area of law, which probably practitioners do not get involved in because there is no legal aid so it is really down to law centres, CABx, FRU and similar organisations and that is social security.

When I have tried to understand any social security legislation it has been a nightmare to go through the five or more layers of amending statutory instruments to find out what the law is. At least with statutes there are other benefits that you at least find out what the law is now. It is a bit more difficult if you need to know what the law was when your cause of action arose five years ago.

Roger Horne just suggested to me that maybe tax is an even worse area. But it is getting wider. When Peter Britain was head of IPCD, several years ago he said to me that probably the 1988 Copyright Act was the last Copyright Act we are going to have and everything else is going to be done through secondary legislation, which is how it has turned out.

So can I ask whether there is any possibility that either the DCA or BAILII is going to be able to assist with producing annotated secondary legislation?

LORD JUSTICE BROOKE: BAILII would love to provide the service as it is non-profit making.

In the Court of Appeal the other day we had a case involving what child support secondary legislation was in 1996. It was an awful job getting hold of what it was after a number of amendments and cross-references, and I could not agree with you more, it is a real problem.

I cannot say anything is scandalous because I am a judge, but it is profoundly depressing, given the way in which our legislators do legislation by add-on rather than by the way that they do it in Australia, that, if the statute law database is going to become available, it is not going to become available and free to everybody for the kinds of purposes we have been talking about.

Well, I think we had better bring the panel to an end now, because otherwise we will never end.

Thank you all very much indeed.

Richard Susskind — if he has not left — here is your moment.

I should think Richard needs no introduction in this gathering. His greatest achievement was when he was Chairman of the Society for Computers and Law; an absolutely brilliant chairman at that. He has now got a list of distinctions — including IT Adviser for the Lord Chief Justice — as long as your arm, but he is always willing to find time to talk at gatherings like this about the interesting things he is doing.

PROFESSOR RICHARD SUSSKIND: Thank you, Henry. Good evening, ladies and gentlemen. It is a great pleasure to be here and a great pleasure to join everyone in congratulating BAILII on its 5th birthday. In legal technology terms BAILII is an undoubted triumph and long may it flourish.

I am conscious I stand between you and drinks and canapés and cake. That is not a pleasant place to be poised so I am going to be briefer than my advertised 15 minutes, which is unprecedented in the history of my public speaking. So I will whip through rather quickly.

What I am going to tell you is a bit of a story — about some work I have been involved with recently with the government which I think puts BAILII in its wider context.

You will know — this really dates back to the “free the law” campaign — that in the mid-90s the government began to have a change of view in relation to making official information publicly available and more easily accessible. There have really been two strands of thinking here. One is the freedom of information regime about which I will say no more than this is about requesting and gaining access to public information.

The second strand is a far less well-known regime which is actually on all fours with this evening’s subject. I am referring to what is known as the PSI regime. PSI stands for “public sector information”. And I want to focus on PSI this evening.

Public sector information is, in my view — and I have only been exposed to it in detail in the last 18 months — is an astoundingly undervalued resource. I have in mind here not only statutory information and law reports and so forth, but also geographical information, meteorological information, census data, statistics and so forth. All of this information is captured and used in the course of daily government activity; but the key point is that that same information can actually be put to good effect by others: by publishers, by educators and indeed by citizens as well.

BAILII was an early example of this. There was lying around, as it were, after extraction, public sector information (statutes and law reports) that was pooled together and enabled through technology and “hey presto” a new, extremely valuable information resource was created. In many ways this foreshadowed a great deal of other work that is now going on across government to try and reuse and harness public sector information more widely.

To be reused, as we have seen from BAILII and from other projects, we may need to reorganise information, you may need to add further information, or refine it and so forth, and that additional value might be added by public sector bodies or by private sector organizations (such as publishers), or by

charitable bodies or academic organisations.

The most dramatic example of all of this that I have found is that the geographical information of Ordnance Survey — the UK national mapping agency — in 1996, as considered to underpin around £100 billion worth of economic activity in the UK.

And yet, this resource, PSI, is scarcely recognized, even thought it is the single most valuable asset, intellectual asset, in our country.

What we have seen in BAILII is a process by which slices of PSI have been aggregated, repackaged presented in a way that increasingly adds value in a number of ways both to the legal profession and to the citizen.

There is emerging, however, beyond the legal world, a huge challenge, and that is the regulation, the control and generally the maximisation of the value of this public sector information. To manage this challenge, the government launched a whole variety of initiatives, one of which was the establishment of a non-departmental public body, a quango if you will, to advise on PSI. The Minister of State at the Cabinet Office last year, in April, set up this body, and appointed me as chairman.

We are an advisory — that is to say non-executive — non-departmental public body. There is a team of about 20 part-time people, some within the public sector, some from private sector business and some academics too.

We were originally called the Advisory Panel on Crown Copyright but we are now the Advisory Panel on Public Sector Information. This name change is very significant because originally the focus in these areas was thought largely to be on the Crown ensuring that its intellectual property was protected. But there has been a major swing of emphasis now, not least because of the European Directive on Public Sector Information, a directive that is concerned less about copyright protection and more about the maximisation of the value of PSI.

Our belief in our Panel is that PSI is a hugely valuable resource and, if nurtured and developed, it can be of immense value — in education, commerce, industry, government and to citizens. In short, PSI can be of immense value to the economy generally. Our job is to advise the government, to ensure that the asset that is public sector information is protected, to ensure it is exploited appropriately and to ensure that its value is maximised. So we are there to draw attention to opportunities and of course threats, to encourage that law and regulation stimulate rather inhibit uptake and exploitation of PSI and, if disputes arise over PSI, to urge that these are settled sensibly and proportionately.

Further to what Graham was saying, I can confirm that we have not been called upon to advise on the legality of BAILII from a Crown copyright point of view. Needless to say, you cannot take that as any kind of implied licence, not least because our Panel is non-executive in nature. We are simply advisory.

One of our main tasks is to advise on the European directive that I mentioned, the European Directive on Public Sector Information. I suspect most of you have never heard of this, but it is absolutely fundamental to the future of BAILII and similar such systems. So to anyone who is involved with BAILII I suggest you go and look at it. You should also look in this context at recent work by Philip Leith (who is with us this evening) and Karen McCulloch, who have written an important article on PSI in the forthcoming issue of the International Journal of Law and Information Technology. Their paper looks at the implications of the new directive on legal information systems generally and it takes note of the impact on BAILII in particular.

Another task that we have been called upon to do is to have a look at what the government is doing in relation to PSI and comment on whether or not we think it is going well. As you will recall, in the mid 1990s, there was great criticism of government policy on official information by the legal community. Since then, we have seen remarkable and positive change; a real liberalization. Nonetheless, we were called upon to express a view on the state of government policy and thought it might be helpful for me to give you highlights of our annual report which you can also read online at

I will just give you four highlights. The first thing that we have discovered is that awareness of public sector information — its value, its impact and the impending European directive — is dreadfully low, and if you compare PSI to its twin sister, FOI (freedom of information), it really is lamentably under-recognised. There is much work, we think, that the government needs to do on this and, if they do, then the kind of value that I think people are getting from BAILII will similarly be gained from other information systems in other domains.

We have also noticed that, although we are generally supportive of the government’s increasingly liberal policy (and I think BAILII, in part, is the beneficiary of that), that government policy remains rather too fragmented in this area and we are quite critical of this. Consider again this remarkable body of stuff that we call public sector information. You will find that there are conflicts within the government as to how PSI should be exploited. At the Cabinet Office, for example, we find that public sector information is regarded as a great resource that should be used and leveraged to improve the quality of public service to citizens. At the DTI, however, we see it as a resource that can actually help underpin and support a more profitable information industry in the UK in Europe.

At the same time, at the Department of Constitutional Affairs, the focus is on freedom of information, on how public sector information can be made available so that government processes and activities are more transparent. But at the Treasury, we see public sector information recognized as an opportunity either to save money or perhaps to generate new revenue.

While each individual department has internally coherent policies, as a set of policies, they are in continual tension. Our Panel were quite critical about this in our annual report and said that the various bodies needed to get round the table and actually iron out the conflicts and tensions, not least because it is terribly unclear for those of us who are involved — and I don’t just mean our group, I mean anyone who is trying to exploit public sector information – to grasp what the overriding policy objectives are. That was our second point.

Our third point was that the government’s commercial exploitation of public sector information needs far greater scrutiny, and we have already had an interesting series of discussions about this.

It may surprise you that there is actually very little published information about the value of public sector information and how much revenue it actually brings to the public sector. Also, we found that there is very little academic thinking about what kind of economic models one might want to apply in trying to understand the value public sector information.

One contentious area is government policy on charging for the re-use of PSI. The general policy is that most public bodies should charge for the supply of what is called “core” public sector information at what is called a “marginal cost” rate. This, by and large, means that PSI is available at very low cost or no cost to the user. I entirely support Graham’s point, in this connection, that new technologies should actually be lifting the bar, as he put it, so that what was once considered to be “value- added” information might increasingly be regarded as core information. Today’s value-added information becomes the core information of tomorrow. More generally, however, we are increasingly moving to a liberal position, whereunder information produced in the course of government activity should generally be made available at as low a cost to users as possible.

Yet, there is an exception to this because some departments and agencies, known as trading funds, are actually allowed to operate like private sector businesses. So, they take public sector information (as is done in the Met Office, Ordnance Survey and so forth), and they sell it at commercial rates. Intuitively, I am sure some of you will have a strong intuition that this is unacceptable. The more one looks into this, however, you can see there is some considerable justification for the trading fund model. But, the thinking behind it and the analysis and research that supports it, we have found to be most confusing and we think it needs revisiting in its entirety.

The Statute Law Database is a fascinating case study here. It will be interesting to see, given the content of the PSI Directive and given the general trend to make public information freely available, whether the government seeks to charge for the provision of that service, even that part that is argued to be value-added. I think we may find that there will be some heated discussions about this. Finally, in terms of our evaluation of government, we concluded, I am happy to say that HMSO is performing well. I think it was Graham, again, who mentioned Carol Tullo. She still heads up HMSO and did indeed take a liberal approach to BAILII. I have worked with her over the 18 months on these various projects and she is genuinely very supportive of BAILII. And she is to be credited with a good deal of the excellent work that is going on in government. I think you will find her of what I characterized the Cabinet Office mindset, which is: PSI is about increasing the quality of public service, about widening access to the government information rather than making more money for government. And and I think that this resonates with the earlier discussion at this meeting.

Allow me now to speak much more generally. What is actually going on here? What is the big picture. I want to offer closing remarks at this level for a couple of minutes because we are actually seeing – even if this sounds rather grandiose — but I think we are seeing through all of this a fundamental shift and a change in the relationship between the individual and the State. And in BAILII we saw a very early indication of how things might take shape.

Historically, it seems to me that our government (and frankly all other governments) have been closed; closed in the sense that government information was made available on a “need to know” basis. In a totalitarian state, there was one rationale for this – dictators do not want information accessed by the public or by external organisations. Restricting the flow of information is central to totalitarian rule. In a democracy, the justification for closed-ness might be quite different. Through the 70s, 80s and 90s, for instance, in information terms, it might be said that we had a rather paternalistic UK state, underpinned by a view that government information should be released, as said, only on a “need to know” basis, perhaps because it was not in the interests of the people to reveal more than the bare minimum. The less paternalistic would say that the problem was, rather, that there simply were no effective channels for fuller information flows between the state and the individual.

I know this is crude stuff but I think it is sound.

A whole bundle of things happened through the 90s, however, not least of which was the advent of the internet and the world wide web and also the growing impact of the fields of information and knowledge management, with people recognizing and exploiting the wealth of resources out there. Thus, information could no longer simply be held in inaccessible silos but could actually be shared and liberated. This, in large part, helped give rise to a whole shift towards open government. It is a matter of interesting debate whether the shift to openness was therefore enabled, catalysed and encouraged through technology and systems or by a new political will to make government more open.

In any event, it has resulted in far more open government. But when I have looked at open government more carefully, it seems to me that there are two different sorts of open government. There is what I call “reactive” open government and there is “proactive” open government.

Reactive open government is the sort of government that, when faced with a request for access to some official information, will indeed respond by satisfying the request, by providing access. In many ways this underpins much of the thinking behind the freedom of information regime. So, one has to make a request, as it were, to gain access to information.

However, more attractive to me is proactive open government, whose policy it will be to consider it to be an integral part of the government function not only to discharge its normal duties and deliver its services but, in producing information as a by-product of these duties, to make this automatically and as much as possible, available to the people, through the innumerable channels we now have, not least of which is the Internet. Proactive open government is much much more than acceding, more or less willingly, to requests for access to information; rather, it is regarding the continual provision of almost all official information as part of the very business of government.

What we are going to see, I suspect, is the government struggling, not just in this country but around the world, struggling to move from being reactively open to becoming proactively open. This, in my view, is where BAILII has been of immense significance, because what BAILII has actually brought about is a shift in the UK government’s approach to statutory material and law reports — from it being reactive to being proactive.

We heard earlier that the provision of the materials, whether it be law reports or legislation, is now automatic; it is part of the process of government (of DCA and HMSO). So what you are seeing in BAILII is not just legal information being made available free to citizens and to lawyers, which of itself is of immense significance. More than this, you are actually seeing, in the area of legal information, a very early example of a fundamental shift in the nature of government, a shift towards thorough-going proactive government. I expect that we will look back in 50 years’ time and see BAILII as one of the main catalysts in changing the relationship, as I say, between the individual and the state. So BAILII has profound significance not only as a remarkable research tool but, it seems to me, also as an agent of change, affecting the very nature of government.

Once again, I take my hat off and offer my congratulations to everyone involved. BAILII is a marvellous initiative. It will continue to grow and flourish and has my full support.

LORD JUSTICE BROOKE: Thank you very much. What a wonderful way to finish. I am sorry we have overrun. We had lots of interesting people who have lots of interesting things to say.

One thing I failed to do is we have had a lot of interesting questioners who I should have asked to identify themselves so that if when you visit the BAILII website next week, you want to see who you are and not just questioner, do tell our wonderful transcriber who you were and which question you asked.

Thank you very much. This is the end of the formal part of the evening. The informal part, apart from the formality of cutting our birthday cake, is going to happen round the corner. Thank you.

(Meeting adjourned)