This year marks the 20th anniversary of the British and Irish Legal Information Institute, better known to all who use it as BAILII.
Although it is the UK’s most popular free legal website, according to a survey by the Society of Legal Scholars, BAILII is a charity, run on a very modest budget for what it does, and largely funded by sponsorship and private donations. It also receives funding from the Ministry of Justice (MoJ), but this is currently subject to annual review and no longer guaranteed for five-year periods as it was previously.
This post explains the background to the launch of BAILII and how it became what it is today. There will be a separate post showing how to find cases and other materials on the site, which is perhaps not as intuitive or user-friendly as more modern sites: see All about BAILII – part two: how to use it
BAILII’s primary function is to make available the primary sources of law in the UK and Ireland. There are two main sources of primary law:
(1) legislation, such as Acts of Parliament and statutory instruments, and
(2) case law, which is the law declared and explained in the courts.
Historically, legislation has been officially promulgated by or on behalf of the government, typically through print publications sold and distributed under licence by Her Majesty’s Stationery Office (HMSO). With the advent of digital publication and the internet, that aspect has been passed to The National Archives, who manage the official website, www.legislation.gov.uk
Case law has historically been published in a much less organised fashion, with a variety of independent reporters and publishers being responsible for covering different courts over the years. This changed in 1861 with the establishment of the Incorporated Council of Law Reporting for England and Wales (ICLR) as a comprehensive and centralised reporting service; and similar councils were set up in Ireland and Scotland.
But they only published those cases deemed important enough to report, because they set a legal precedent. Other cases fell into a void and were generally lost to both posterity and later research. And like HMSO selling copies of legislation, the reporting councils funded their operations by selling subscriptions (although at far more modest prices than commercial legal publishers).
The idea that the general public should be entitled, without payment, to have access to the laws of the land by which they are governed is a relatively recent one. It was given form by the global Free Access to Law Movement (FALM), which in turn was given effect by the establishment, around the world, of Legal Information Institutes. This is where BAILII came in.
The Legal Information Institutes (LIIs)
The concept of the Legal Information Institute (LII) seems to have begun with a free legal database at Cornell Law School, founded in 1992. It was followed by others, including AustLII, the Australasian Legal Information Institute.
BAILII began in 2000 as a pilot set up by AustLII, who supplied the relevant technology. The committee of trustees was chaired by Lord Justice Brooke, one of the leading judicial champions of legal IT and of the digitisation of judgments, with paragraph numbers and neutral citations.
Although launched in Cork, with much of the early material being Irish, BAILII has since 2002 been mainly run and hosted in London, at the Institute of Advanced Legal Studies. It has very few staff, with the ingesting and uploading of new content being largely done by automated processes.
You can read a full Timeline of BAILII’s history on their website. As well as AustLII and BAILII, there are a large number of other LIIs in jurisdictions around the world, including CanLII (Canada), NZLII (New Zealand), AsianLII (Asia) and SAFLII (South Africa).
BAILII does no editing in the traditional sense of commissioning, selecting or rewording of the material. Judgments are posted as supplied by the judges; if a judgment contains an error, it is for the judge to correct it. There are no headnotes in the traditional sense of a law report, as published by ICLR for example; but some judgments are provided with a press summary, and some tribunals provide index headings (catchwords) and a summary a bit like a headnote at the top.
What BAILII does is, first, to format the content in HTML (the code used to display internet pages) and, secondly, to add hyperlinks to other documents, eg from case citations, if and when these are held in the database. Most cases are displayed in HTML with the option of downloading the PDF or RTF (Word) version supplied by the court.
In addition to case law from all the jurisdictions in the UK and Ireland, European Union and the European Court of Human Rights, BAILII also publishes legislation (although this is not updated with amendments in the way that it is at www.legislation.gov.uk ) and other legal materials such as Law Commission reports.
Judgment dissemination and judgment enhancement
People often describe judgments as being “reported” on BAILII but technically they are simply being published. A law report is a different beast. There is an explanation of the difference on the ICLR website: see What’s the difference between a “law report” and a “transcript”?
The word “transcript” is also perhaps a little ambiguous. Most judgments published on BAILII will have been reserved at the end of the hearing and then written by the judge(s) and “handed down” at a later date, either in court, or remotely. However, judgment can be given orally by the judge in court, either at the end of the hearing or at a later hearing just for the purpose, in which case they are described as having been given “extempore”. Such a judgment will then need to be transcribed, by the official shorthand writer for that court. Hence the word “transcript”. However, this can also refer to the transcript of a hearing, such as a litigant might need to order when pursuing an appeal.
There is a good description of the difference between what he called “judgment dissemination” and “judgment enhancement” in the first of the annual BAILII lectures, entitled No Judgment – No Justice, given by Lord Neuberger, former President of the Supreme Court, in 2012. He explains that what he called “judgment dissemination”, in the form of easy and full access to all judgments given in open court, is what BAILII provides. In doing so, it supports and promotes open justice. What he called “judgment enhancement” is the “expert and judicious selection” and summarising of judgments for a more specialist readership, as done by the ICLR and others since the 1860s. Both, he said, played an essential role, and should be supported.
What next for BAILII
Although BAILII has been very successful in establishing itself as the go-to free source of new case law, it is hampered by two fundamental obstacles.
The first is its dependence on donations and sponsorship and the lack of reliable financial support from either the government or the courts service (HMCTS).
The second is the lack of proper recognition of its status. The Ministry of Justice seems to want to have its cake and eat it. It provides a modest amount of financial support but refuses to guarantee this for more than a year at a time, although it used to make five-yearly awards. But it expects BAILII to behave like the official government source that it very plainly and properly isn’t. See, for example, the MoJ’s bungled attempt to offer third party data services the right to help themselves to BAILII’s content without so much as a by-your-leave, which we discussed in an earlier post: BAILII and the re-use of judgments as public legal information
What the MoJ and/or HMCTS should be doing, of course, is providing, or funding, a truly comprehensive open data platform delivering all public judgments from all courts and tribunals, among other legal information. Instead, there are some cases (those thought to be of media interest, mainly) being published by the Judicial Office on the Judiciary website, along with practice directions, lists of judges and public announcements; and others published on the various official sites of some of the tribunals (but not all of them). Meanwhile, it is up to judges themselves whether or not to send their judgments to BAILII. Practice is patchy and unregulated. Therefore many are simply never sent there, especially when courts are facing excessive workloads.
In other common law jurisdictions, such as in Canada or Australia, all the courts publish all their own judgments, and the LIIs are only concerned with collecting and organising the material on a single platform. The only court that provides its own judgments here is the Supreme Court.
Given that the courts of England and Wales have been engaged in a massive digital makeover since 2016, at a cost of well over £1bn, you’d think this would be something they’d have addressed. But like other aspects of justice data, it’s been left to be dealt with last, rather than built into the reforms ab initio; as demonstrated in Making the most of HMCTS data, HMCTS’s tardy and patchy response to a report by Natalie Byrom, of the Legal Education Foundation, Digital Justice: HMCTS data strategy and delivering access to justice.
This week, BAILII announced that it would be granting bulk access to its entire dataset of judicial decisions to a team from Oxford University that wants to carry out research into the use of artificial intelligence in law. The Unlocking the Potential of AI for English Law project will be able to explore the application of artificial intelligence to the analysis of a very large body of case law from England and Wales. This is an exciting development from a lawtech perspective, although it may give rise to anxiety among the judiciary that their decisions will be analysed for signs of bias or used to predict litigation outcomes, as has happened in some other jurisdictions. (In France, judicial analytics was expressly outlawed.) The Oxford project will be subject to ethical safeguards, but there must be concern that similar projects from a commercial background might not be. Careful governance will be required.
What such projects may offer, however, is a source of future funding. BAILII has an astonishing amount of content, and while it may not be the easiest place to look for legislation, its coverage of case law is far broader than would have been provided by traditional scholarly law reporting. But it struggles to do more than keep afloat. A recent article by Michael Cross in the Law Society Gazette asks Has bargain BAILII had its day? We are not so pessimistic. But the question suggests that what once looked like a noble public interest endeavour in the heady early days of the Free Access to Law Movement is now regarded by many as needing a comprehensive and well-funded overhaul, and that isn’t going to come from anxious goodwill and charitable donations.
Featured Image: Photo by Sini Tiainen on Unsplash
This post originally appeared on the Transparency Project Blog and is reproduced with permission and thanks.